PARTLY DISSENTING OPINION OF JUDGE MACDONALD

Contrary to the majority of the Court, I have reached the conclusion that there has been a violation of the applicants ’ rights under Article 6 para . 1 standing alone (art. 6-1) and also Article 6 para . 1 in conjunction with Article 14 of the Convention (art . 14+6-1) in the present case. Article 6 para . 1 (art. 6-1)

1.   The general purposes of statutes of limitation are beyond doubt legitimate, but in the present case there was not, in my opinion, a reasonable relationship of proportionality between the means employed by the State and the objects sought to be achieved.

2.   Having regard to the nature of the injury involved and the fact that victims of childhood sexual abuse are frequently and for various periods of time unaware of the causal link between the damage suffered and the acts responsible, the imposition of a fixed statutory time-limit which expires six years after the date of the act or after the date on which the victim attains his or her majority (eighteen), regardless of the circumstances of an individual case and without the availability of a procedure to mitigate against the consequences of the applicable period, is, in my view, disproportionate in that it unreasonably deprives the applicants of a right of access to court and thus lies beyond the margin of appreciation enjoyed by States in establishing time-limits for the introduction of proceedings.

3.   It is clear from the jurisprudence of the Court that limitations on the right of access to national courts "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" (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Seri es A no. 93, p. 24, para . 57). The Convention "is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective", (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 12, para . 24). In the present case, the psychological harm suffered by the applicants caused them to be unable to bring proceedings within the statutory time period. When they did become aware of the link between their present psychological conditions and the earlier abuse, they found that the "very essence" of their right of access to court had not only been restricted or reduced but had indeed become illusory.

4.   Among the interests to be considered in reaching a conclusion on the question of proportionality, one can readily identify the need for legal certainty, the need to extinguish stale claims, and the need to avoid or reduce the risk that the alleged wrongdoer might be unfairly treated as a result of making findings of fact that go back many years. There are also, however, important interests represented by the need to recognise and make possible the vindication of the rights of child victims who were not even aware of the existence of their rights before those rights became statute-barred, and the overall security, health, and well-being of society at large.

5.   While the legislation clearly serves the traditional aims of statutes of limitation relating to the control and prevention of injustice, it does not (unfortunately) reflect a satisfactory recognition and accommodation of other outstanding interests involved in the increasing effort to meet the challenges which the problem of child sexual abuse presents to legislators, draughtsmen, and judges. The traditional aims of the statute are sought to be realised specifically at the expense of the applicants ’ rights under the Convention and, more generally speaking, the struggle to recognise that sexual abuse of children is a gross violation of children ’ s and human rights and to promote fundamental change in the nature of social reactions and attitudes to the depressingly prevalent phe nomenon of child sexual abuse. Article 14 (art. 14)

6.   I am also of the opinion that the difference of treatment between those persons whose injury was intentionally inflicted and those who suffered injury resulting from an unintentional breach of duty was not based on any objective and reasonable justificatio n within the meaning of Article 14 of the Convention (art. 14). The Court of Appeal in its judgment in Stubbings v. Webb of 27 March 1991 (see paragraph 14 of the judgment) concluded that the limitation period started to run only when the applicant realised that her symptoms were attributable to the abuse suffered as a child.  Alternatively, the Court of Appeal was prepared to exercise its discretion under the Limitation Act 1980, section 33, to allow the action to proceed. Pursuant to the Limitation Act 1980, section 11, this discretion is only available in cases relating to personal injury arising from negligence, nuisance or breach of duty. Relying on Letang v. Cooper [1965] 1 Queen ’ s Bench Reports p. 232, the Court of Appeal found that section 11 did not distinguish between claims based on unintentional and inten tional trespass to the person. This finding was overturned by the House of Lords which held that cases of deliberate assault did not fall within the definition in section 11 but were more properly the subject of an action founded on tort; there was no discretionary power to extend the limitation period.

7.   When compared to the position of claimants who have sustained unintentional injury, the result of this measure is, in my view, unreasonable and disproportionate. In the light of evidence to the contrary, it cannot reasonably be contended that all victims of intentionally inflicted injury are more likely to be aware of the facts on which to found a claim than victims of unintentional injury. Especially in the case of a child sexual abuse victim, it is not reasonable to make the victim ’ s access to a court depend on whether the perpetrator inflicted the injury intentionally or negligently. The legitimate purposes pursued by the State in imposing a limitation period on actions are equally applica ble to both types of claimant. I see no reasonable justification for distinguishing between these types of injury or classes of claimant.

8.   It is apparent then that persons in an analogous position to the applicants enjoy preferential treatment without reasonable or objective justification for the distinction (see the Fredin v. Sweden (no. 1) judgment of 18 February 1991, Series A no. 192, p. 19, para . 60). This difference of treatment, based on seemingly artificial distinctions, due perhaps to the difficulty of adapting the concept of limitations to these new factual patterns, produces inequality of treatment which cannot be regarded as compatible with the Convention (see the above-mentioned Airey judgment, p. 16, para . 30).

9.   I conclude that there has been a violation of Article 6 para . 1 of the Convention standing alone (art. 6-1) and also of Article 6 para . 1 taken in conjunction w ith Article 14 (art. 14+6-1) [4] .

[1] The case is numbered 36-37/1995/542-543/628-629. The first two numbers are the positions of the cases Stubbings and Others v. the United Kingdom and D.S. v. the United Kingdom (as they were at the time of the referral to the Court: see paragraph 1 above) on the list of the cases referred to the Court in the relevant year (third number). The last four numbers indicate the cases' positions 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 A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons these annexes will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but copies of the Commission's reports are obtainable from the registry.

[4] For the contextual background against which the problem should be viewed, see in particular the conclusions of the Fourth UN Conference on Women (Beijing, September 1995); the Stockholm World Congress on Sexual Exploitation of Children ( Stockholm , 1996); the Report of the European consultation for the World Congress against Commercial Exploitation of Children ( Strasbourg , 1996), referring at p. 10 to the United Kingdom report calling for "more child friendly and child sensitive procedures in the criminal justice system"; and the helpful scholarly studies by Edward H. Hondius ("Extinctive Prescription on the Limitation of Actions", 1994) and Nathalie Des Rosiers ("Limitation Periods and Civil Remedies for Childhood Sexual Abuse", Canadian Family Law Quarterly, vol. 9, 1992-1993, p. 43), both of which emphasise the need for a range of flexible remedies.