I am happy to introduce a new guest post by professor Renáta Uitz of Central European University in Budapest, who has earlier contributed to this blog, this time on the recent Grand Chamber judgment in O'Keeffe v Ireland, dealing with victims of sexual assault in schools. Her comments particularly focus on the positive obligations elements in the Grand Chamber's reasoning:
O’Keeffe
v Ireland Brings Closure to Some, Uncertainties to Others
by Renáta Uitz
The Grand Chamber’s
judgment in O’Keeffe v Ireland concludes
litigation in a test case of a victim of sexual assault in Ireland’s national
school system some 41 years after the initial school incident. A divided Grand
Chapter found that Ireland violated the substantive aspect of Article 3 when it
failed to protect the applicant from sexual abuse, and also found a violation
of Article 3 in conjunction with Article 13 for Ireland’s failure to provide an
effective remedy to protect the applicant. While the judgment brings closure to
the victims of sexual abuse in the Irish national school system, the
construction of positive obligations in public education under Article 3 arguably
amounts to a departure from previous case law. As the division of the Grand
Chamber indicates, this departure did not go unnoticed on the bench: Judges Zupancic,
Gyulumyan, Kalaydjieva, de Gaetano and Wojtyczek wrote a joint partial dissent,
Judge Charleton filed a dissenting opinion, while Judge Ziemele wrote a
concurring opinion. The implications of this new construction of positive
obligations under Article 3 as applicable for public education are clearly
worthy of further attention, in light of old as well as future cases.
Despite its
four-decade long history, the facts of the case are straightforward. The applicant
was sexually assaulted by a music teacher in 1973, in a so-called national
school, i.e. a denominational school financed by the state. At the time, 94 per
cent of primary schools were such national school in Ireland. The teacher was
convicted and imprisoned in 1998. The applicant received compensation for
criminal injuries in 2002, and recovered damages in a civil action from the perpetrator
in 2006. The applicant’s civil action for damages against the government was
dismissed by the Supreme Court in 2008, when the national court did not find
the state vicariously liable for the sexual assault committed by a teacher in
the national school. During this time there were several inquiries and reports
on sexual abuse in the Irish school system, and also special procedures were
put in place to address allegations of sexual abuse.
After the judgment of
the Irish Supreme Court the applicant turned to the ECtHR about the state’s
failure to protect her from sexual assault and failure to provide an effective
remedy under Articles 3, 8, 13, 14 of the Convention and Article 2 of Protocol
no. 1.
When assessing the
admissibility of the application, on the applicant’s victim status the ECtHR
found (12 to 5) that in relation to the perpetrator’s criminal conviction and
the applicant’s access to damages, the national legal system did not address
the issue of the state’s responsibility in the applicant’s case. Although criminal
damages were paid to the applicant from state funds, the ECtHR found that this
payment was based on an ex gratia
basis and did not acknowledge the responsibility of the state [para 118].
On account of the
violation of the substantive aspect of Article 3 the applicant argued that the
state’s failure to put in place an adequate legal framework protecting children
from sexual abuse violated a positive obligation. The applicant also argued
that sexual abuse in the national schools was a risk which the “state knew or
ought to have known” [para 123]. As the Court summarized it in the applicant’s
argument the discussion of the nature of the state’s positive obligation in
public education and the state’s awareness of the abuse of children in schools
was intertwined. This connection was also accepted by the Grand Chamber when it
summarized the essence of the claim as “whether the respondent State ought to have been aware of the
risk of sexual abuse of minors such as the applicant in National Schools at the
relevant time and whether it adequately protected children, through its legal
system, from such treatment” [para 168].
The Grand Chamber (11
to 6) described the positive obligation of the state under Article 3 in primary
education with regard to the “nature and importance of this obligation,”
emphasizing that primary education was an “important public service,” that
school authorities were obliged to protect “young children who are especially
vulnerable and are under the exclusive control of those authorities” [para
145]. Thereupon the ECtHR declared that “having regard to the fundamental
nature of the rights guaranteed by Article 3 and the particularly vulnerable
nature of children, it is an inherent obligation of government to ensure their
protection from ill treatment, especially in the primary education context”
[para 146]. Importantly, agreeing with the applicant the ECtHR found that the state
is not absolved from such obligations
when delegating duties in primary education to private actors [para
150].
Looking at the facts
of the case the Grand Chamber found that the “State was therefore aware of the level of sexual crime by adults against minors.
Accordingly, when relinquishing control of the education of the vast majority
of young children to non-State actors, the
State should also have been aware, given
its inherent obligation to protect children in this context, of potential risks to their safety if
there was no appropriate framework of protection.” [para 162, emphasis added] Assessing the
mechanisms in place the ECtHR found that the respondent state failed to fulfill
its “inherent positive obligation … to protect children from ill treatment.”
[para 168]
Taking Article 3 in
conjunction with Article 13, the Grand Chamber (11 to 6) also agreed with the
applicant that the lack of legal mechanisms to find the state liable for the
violation of her bodily integrity (an unenumerated constitutional right) meant
that national law did not afford an effective remedy to the applicant. The
irony of the majority’s position was pointed out by the joint dissent, when it
noted that this case could only come before the ECtHR because the state provided
avenues for asserting civil and criminal damages two decades after the original
facts of the case occurred [joint dissent, para 6].
The points which the
concurring opinion of Judge Ziemele made about the retroactive application of
jurisprudence on positive obligations in the context of public education were
carried further by the joint dissent. Note that the issue is not that of
potentially time barred suits, but rather, how should the Court respond where
the applicable standards of protection have changed considerably since the underlying
facts of the case occurred. In the elucidating words of the joint dissent “[i]t 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.” [para. 9] While the majority opinion does refer to
international instruments on children’s rights and education which had been
adopted by 1973, the joint dissent argues that the contents and intensity of
these obligations became clear only in more recent years.
Note that while that
the facts of O’Keeffe (due to the
unique features of national schools in Ireland) create the impression that this
case is rather exceptional, the retroactive application of more recently
developed standards of protection in the positive obligation jurisprudence is
not unique to this case and is not even novel. For instance, in 2008, in K.U. v Finland [Application no. 2872/02,
Judgment of 2 December 2008], a case involving child pornography and the
internet, the Court took it that in 1999, when the facts of the case occurred (i.e. a decade before the judgment), “it was
well known that the Internet, precisely because of its anonymous character,
could be used for criminal purposes” [para 48]. In that case the Court found
that although in the meantime adequate mechanisms of protection were put in
place, these measures came too late for the applicant [para 49]. It remains
questionable at best, if the harms and risk that were associated with child
pornography on the internet and the anonymity of the medium werel similar in
kind and magnitude in a decade’s hindsight.
While the problem of
time-travel is not unfamiliar, in O’Keeffe
it was further exacerbated by the majority’s understanding of the nature of the
positive obligation to protect vulnerable youth in public education under
Article 3. As also noted by the join dissent, the majority uses a novel concept
of positive obligation in the context of public education. The joint dissent is
most concerned with the majority’s merging of ill-treatment by private parties
and state actors under Article 3 [para 12]. The joint dissent also takes issue
with the majority’s inclusion of risk assessment (termed as retrospective vigilance – para 15)
in defining the scope of the state’s positive obligations in light of harms,
threats and risks which the state is aware of at a particular time. The
majority’s insistence that the state should have been aware of potential risks
to the safety of children in public education (see para 162, above) clearly
builds on a more remote connection between harm and state obligation, than the previously
familiar standard which required the prevention of a “real and immediate risk”
[in the Article 3 context: D.F. v Latvia, Application no 11160/07, 29 October
2013].
The dimension of the
majority opinion on the positive obligations of the state to prevent
ill-treatment in public education under Article 3 which deserves further
attention is the majority’s emphasis on the “inherent” nature of these
obligations. Under Article 8 the Court has been pointing out positive
obligations which are “inherent” in Article 8 at least since the Marckx and Airey judgments in 1979. Today the right to protect one’s
reputation is considered by the Court as inherent in Article 8 [e.g. Axel Springer AG v. Germany, Application
no. 39954/08, Judgment of 7 February 2012, GC, 2012, para 83]. An
inherent positive obligation to provide an effective protection to private life
applies between individuals themselves, and the margin of appreciation of the
state is narrow where a
“particularly important facet of an individual’s existence or identity is at
stake, or where the activities at stake involve a most intimate aspect of
private life”
[Söderman v. Sweden, Application no. 5786/08, Judgment of 12 November 2013, GC, para 79].
While under Article 8
the Court has been invited several times to explain the relationship between
the state’s negative and positive obligations [especially in cases involving
requests for family reunification barred by immigration rules, see Osman v
Denmark, Application no. 38058/09, Judgment of 14 June 2014], the notion of
positive obligations inherent in particular Convention rights has been
spreading in the case law. Jurisprudence under Article 3 has been an especially
fertile ground for the elucidation of such positive obligations inherent in Convention
rights. As acts of sexual violence, especially when left unprosecuted, concern
multiple Convention rights, in its case law the Court took to explaining the
differences between claims and ensuing positive obligations under Article 3 and
8 [see M.C. v. Bulgaria, Application
no. 39272/98, Judgment of 4 December 2003].
In O’Keeffe, however, the majority talks
about inherent positive obligations in a different sense. In para 146 when
inherent positive obligations of the government are mentioned, the French
version of the judgment makes it clear that the obligations foreseen by the
majority are inherent not in particular Convention rights, but in the very nature
of the government’s tasks in public primary education. In the words
of the French version “les pouvoirs publics ont l’obligation, inhérente à leur mission, de protéger …”
[para 146,, emphasis added], which
translates literally as “public authorities have an obligation, inherent in
their mission, to protect … “. (This formulation in the French is repeated when the
majority explains the nature of the failure of public powers: “la protection
des enfants contre les mauvais traitements constituait pour les pouvoirs
publics dès les années 1970 une
obligation positive inhérente à leur mission” [para 168])
It certainly remains
to be seen in future cases, whether there is more to this new formulation of
‘inherent positive obligations’ than a discrepancy between translations. It
quite possibly points to a novel approach that in O’Keeffe the majority explained (in para 145) the contents of this
inherent positive obligation not from the Article 3 case law, but with
reference to a case
involving the inclusion of grades for religious studies in primary school certificates,
decided under Article 9 and 14 (Grzelak v. Poland (Application no. 7710/02, 15 June 2010) and another case concerning
a bus shuttle scheme which resulted in an affected student’s freezing to death
under Article 2 (Ilbeyi Kemaloğlu and Meriye
Kemaloğlu v. Turkey,
Application no. 19986/06, 10 April 2012). Taken together with the risk
assessment which requires national governments to predict and thus prevent potential
future violations of Convention rights, and the unwillingness of the majority
to distinguish between private and governmental actors, this understanding of
positive obligations inherent in the nature of a public service (public primary
education, in the case at hand) clearly requires further elaboration – and clarifications
may only follow from further decisions where the approach is used.
As the joint dissent properly points
out, focusing on the inherent obligations of the state with regard to a
particular governmental function or public service opens up the possibility for
the Court to indirectly impose particular (“ideological”) visions on how that
public service is best performed [see joint opinion, para 19]. Dissenters in O’Keeffe found that the majority prefers
strong state participation in education. Obvious objections include that such
judicial line drawing would leave very little room for national differences.
Instances where the scope and limits
of this emerging approach may be tested are not that remote even in the primary
public education setting. For instance, while the Court has been rather
receptive to claims of Roma children challenging their discrimination in
primary public education, key judgments in this area are largely unenforced.
The psychological harm caused by misdiagnosis required for the placement of
Roma children in special classes, their ruined educational prospects and
inferior life or career prospects are all serious instances of emotional and
psychological harm affecting the deepest layers of these students’ humanity. That
“[p]ublicly to single out a group of
persons for differential treatment on the basis of race may constitute a
special form of affront to human dignity and might therefore be capable of
constituting degrading treatment contrary to Article 3” is difficult to
question since the Commission’s decision in the East African Asians v UK case, in 1973. It may be time for the
Court to give much needed edge to its case law on discrimination against Roma
children in public education, and remind member states of the seriousness of
the violation they engage in, in an Article 3 setting. The Court’s approach in O’Keeffe’s relying on
positive obligations inherent in public primary education under Article 3 may
have just confirmed that this opportunity is still open.
Another setting where the O’Keeffe approach on positive
obligations in public education may be put to a test involves the lack of
anti-bullying measures. With school children suffering from bullying in public
schools, and attempting suicide, it is hardly questionable that the well-being,
physical integrity and in some cases even the life of school children is
imperiled by the lack of adequate legal frameworks, preventive mechanisms and
even awareness in some member states. Since the victims of bullying often
happen to belong to protected minorities, they are by definition even more
vulnerable than the average pupil. Also, as bullying often takes place outside
school premises, through internet and social media, a case like this would
serve as an opportunity to clarify the obligations of the state in a setting
with strong horizontal dimensions.
In conclusion, despite the symbolic
significance of the O’Keeffe judgment
for the victims of sexual abuse in the Irish national school system, it is not
possible to predict what follows from the Grand Chamber’s finding that under
Article 3 member states have positive obligations which are inherent in their
responsibilities in primary public education. The sharp division of the Grand
Chamber is in itself evidence that the O’Keeffe
judgment offers more questions than answers. While – as demonstrated above
– potential future cases are easy to envision, due to the lack of clear
standards and the persisting disagreement, at present the O’Keeffe approach is best seen as a potential alternative to
existing routes of protection.
