Wednesday 12 February 2014

Guest Post on Grand Chamber Judgment in O'Keeffe v Ireland

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.