TrustHLT/LaCour huggingface dataset:
Dean Spielmann (JudgeP): I would explain that in addition to interpretation in the two official languages of the Court, English and French, interpretation into Georgian as well as into Albanian and Serbian has been authorised for the benefit of these two visiting delegations.
Dean Spielmann (JudgeP): That interpretation is not arranged by the Court and no transcription of the oral translation will be included in the official record of the proceedings.
Dean Spielmann (JudgeP): Having consulted the agent of the government and the representative of the applicant, I have determined the order of addresses as follows.
Dean Spielmann (JudgeP): Mr. Holland for the applicant will speak first and Mr. Mc Donagh for the government then,
Dean Spielmann (JudgeP): I call Mr. Holland.
AP1 (Applicant): In January 1973, Louisa O'Keefe was an eight-year-old girl.
AP1 (Applicant): L.H. was headmaster of Dundarrow National School,
AP1 (Applicant): a pillar of the establishment in an Ireland in which national school teachers were held in the highest esteem.
AP1 (Applicant): He was invested by the state with a power that seems to an adult unremarkable, but is to a child awesome, omnipotent, and terrible.
AP1 (Applicant): It was a power that included that of corporal punishment, and Louisa O'Keefe was, as was said in Herzegovina and Austria, in a position of inferiority and powerlessness.
AP1 (Applicant): From January to September 1973, the headmaster repeatedly digitally molested and penetrated Louisa O'Keefe and her children.
AP1 (Applicant): She had to attend that school daily, never knowing when the call would come for a melodica class.
AP1 (Applicant): Constantly watching, fearing, hoping, worrying, in and out of melodica class, she endured months of inhumanity and degradation.
AP1 (Applicant): And ultimately, this case is about human rights in a pure enough form, a child's right to have the state protected with reasonable steps from sexual abuse by an adult placed by law in coercive power over that child.
AP1 (Applicant): As you'll find in the high court evidence of Louisa O'Keefe and Dr. Maree Doolery, there followed
AP1 (Applicant): for Louisa O'Keefe 20 years of not really understanding why it was she couldn't feel the way others felt, of marital problems, of sexual problems, until in the mid-1990s, the headmaster was tried and she began to understand.
AP1 (Applicant): She also learned then that she was not the only victim and far from the first.
AP1 (Applicant): The headmaster had been abusing since 1962.
AP1 (Applicant): He was charged with 386 offenses on 21 girls.
AP1 (Applicant): But these figures considerably understate the extent of his predation.
AP1 (Applicant): As Mr. Justice Gagin said in the Supreme Court,
AP1 (Applicant): an extraordinary feature of this case is that these were sample charges.
AP1 (Applicant): As was observed in the case of CAS and CS in Romania, in some cases, the bare facts speak for themselves of the absence of a system of protection.
AP1 (Applicant): No effective system of child protection could possibly allow a teacher to commit a decade of abuse of tens of victims on about 400 or more occasions in one school and then leave that school due to a complaint all without the Department of Education becoming aware of it until 20 years later.
AP1 (Applicant): Louisa O'Keefe found out in 1971 that a parent had explicitly complained to the school manager of abuse of another young girl.
AP1 (Applicant): Louisa O'Keefe could have been saved, but nothing was done.
AP1 (Applicant): The state seek to minimize this at paragraph 12 of their observations by saying that a concern was raised.
AP1 (Applicant): Be very clear.
AP1 (Applicant): Mrs. Hurley made a very clear and specific complaint in 1971.
AP1 (Applicant): Even in late 1973, when the headmaster was removed from the school, there was a chance for Louisa O'Keefe.
AP1 (Applicant): Had even the most basic investigation identified her as a victim, she would have been cared for and her future very different.
AP1 (Applicant): But again, in 1973, nothing was done.
AP1 (Applicant): Reading the state observations, it's necessary to remind yourself that the question for this court is not, was the headmaster guilty, nor was it that the bishop failed, nor was it that the parish priest or the manager or the curate failed, or even the parents.
AP1 (Applicant): The question now is, did the state fail?
AP1 (Applicant): In Zed and the United Kingdom, it's established that Louisa O'Keefe remains a victim as long as state liability remains undecided.
AP1 (Applicant): Carragher, cited by the state, is irrelevant.
AP1 (Applicant): Carragher was not a victim because she had settled the civil action which could have established state liability.
AP1 (Applicant): The same is true of Hay in the United Kingdom.
AP1 (Applicant): In fact, he even got an admission of police fault.
AP1 (Applicant): Doubtfire is similarly irrelevant because state wrongdoing had been acknowledged.
AP1 (Applicant): In Calvelli and Cicero in Italy, what was at issue was not remedy against the state, but the adequacy of compensation remedy against the offending doctor.
AP1 (Applicant): So none of the case laws cited by the state affects these issues.
AP1 (Applicant): Louisa O'Keefe has never settled with or received compensation from the state in any proceedings to establish state liability, and thus she remains a victim.
AP1 (Applicant): As to the award of the Criminal Injuries Compensation Tribunal, that type of award was considered in Zed and the United Kingdom and August and the United Kingdom an almost identical compensation system.
AP1 (Applicant): And it was held that the scheme providing for ex gratia awards is separate from any notions of state liability and did not concern the applicant's convention rights.
AP1 (Applicant): Provision of an ex gratia award by the state is not part of a deterrent framework necessary to give practical protection of children against sex abuse.
AP1 (Applicant): August's case, of course, was inadmissible, but that was because he had not argued, as we do, that the state allowed the abuse to occur.
AP1 (Applicant): The premise of the CICT award is criminal act by the headmaster, not wrongdoing by the state.
AP1 (Applicant): The CICT is not a court, its members are not judges, and it does not address state liability.
AP1 (Applicant): Coming then to Article 35, Leysia and Latvia, Stork in Germany, and Salmoni in France all emphasize and emphasize in the court's word as to Article 35 that it must allow for context it must be interpreted flexibly and without excessive formalism.
AP1 (Applicant): It is neither absolute nor capable of being applied automatically.
AP1 (Applicant): It is essential to have regard to the particular circumstances of the individual case and take a realistic view of the general legal and political context in which remedies operate.
AP1 (Applicant): And it does not require recourse to inadequate or ineffective remedy.
AP1 (Applicant): And in D and Ireland, all that was reduced to a single question, whether in all the circumstances the applicant had done everything that could reasonably be expected to exalt her remedies.
AP1 (Applicant): The state says that the complaint should have been filed in this case within six months of the non-suit of March 2004.
AP1 (Applicant): They therefore posit simultaneous and separate appeal to the Supreme Court and application to this court.
AP1 (Applicant): And that was a proposition rejected by this court, in effect, in Fernandez Molina against Spain, in which a very similar sequence of events occurred.
AP1 (Applicant): And the court held the time ran from the decision on appeal for the entire complaint as to require the applicants to apply on two different dates to the court would be to construe the time limit too formally.
AP1 (Applicant): The Article 35 must be applied so as to ensure the effective exercise of the right to individual application in keeping with the spirit and purpose of the convention.
AP1 (Applicant): Had we applied within six months of an on-suit, the state would stand here today and object at non-exhaustion of remedy, given the possibility which remained at that time that state liability would be decided in the Supreme Court, albeit on the basis of vicarious rather than direct liability.
AP1 (Applicant): As to the failure to appeal the non-suit on the state's direct negligence, true.
AP1 (Applicant): The action in the High Court failed for want of evidence.
AP1 (Applicant): But it is untrue to state that the applicant is now seeking to re-argue the case on the basis of evidence she could have put before the High Court.
AP1 (Applicant): As the state well knows, the flute of Judge Ryan's nine-year investigation into abuse was not published until after the Supreme Court hearing.
AP1 (Applicant): Also, we assert here that whereas at Irish law, the applicant bore the onus of proof of negligence before this court, the state, by reference to decisions of this court, should bear the onus of proof of an effective, protective, and preventative system.
AP1 (Applicant): So as to exhaustion, we have done what is reasonable.
AP1 (Applicant): Applying the non-suit, appealing the non-suit was pointless.
AP1 (Applicant): And the decision not to do so was reasonable.
AP1 (Applicant): First, because in the evidence, and even applying the decision of shoot and by lot to which the state refer, the appeal would have failed.
AP1 (Applicant): Indeed, in the Supreme Court, Judge Hardiman summarily rejected the direct negligence claim, saying the minister can hardly be responsible for a failure to cease the course of action of whose existence he was quite unaware.
AP1 (Applicant): Second, the view was legitimately taken that the Supreme Court would reject such an appeal as not raising an issue of law.
AP1 (Applicant): And of course, shoot and by lot was then 6 and 1 1 half years into the future.
AP1 (Applicant): And if, as the state says, it represents no more than longstanding law, it's a little odd that they cite no earlier authority.
AP1 (Applicant): In this regard, we rely on the court's view in the Reynolds case of the significance to that case of the UK Supreme Court decision in Rabone and Pennine Care.
AP1 (Applicant): As to suing the bishop, the state cite De La Hunty, the 2011, not 2001, there's an error in the chamber judgment, case of JGE and Portsmouth Diocese, Basley and Currie, Jacoby and Griffiths, and Doe and Bennett, none of which cases address the question of a bishop's liability for his predecessor's wrongs.
AP1 (Applicant): They do address the different question of his liability for his diocesan priests, but that's an entirely different question.
AP1 (Applicant): Some of these cases, interestingly, the Canadian ones, do reflect legislation in Canada making bishops and their diocese corporations sold, but there's no such legislation in Ireland.
AP1 (Applicant): True, Ireland says denial by patrons, bishops of liability, is not unusual.
AP1 (Applicant): But liability is denied for many reasons.
AP1 (Applicant): Bishops often, as Judge Gagan pointed out in the Supreme Court, for many reasons do not deny liability for their predecessors on the basis that they're not corporations sold.
AP1 (Applicant): But in this case, the Bishop of Cork did exactly that by his letter of December 1998.
AP1 (Applicant): And the law of Ireland was in his favor, and counsel advised Mrs. O'Keefe accordingly.
AP1 (Applicant): Rather than delay further on this point, I ask you to look to our submissions and paragraphs 1.46, 3.8, and 3.9 of the Murphy Report.
AP1 (Applicant): Turning to Article 3, yet again, and despite our rebuttal in the submission of November 2011, the state sets out to reject an argument we never made, a quote, philosophical argument that primary education must be entirely state run.
AP1 (Applicant): Now with the added barb that it represents a particular ideological outlook not necessarily shared universally by contracting states, we repeat nothing in our case supports that proposition.
AP1 (Applicant): This claim does not depend on any attack in principle on private or religious schooling, nor on the Irish system of school provision by private organizations such as the Catholic Church.
AP1 (Applicant): This case is not an ideological battleground.
AP1 (Applicant): As Costello-Roberts shows, in the last analysis, it doesn't matter if the school is private, public, or something in between.
AP1 (Applicant): As a matter of convention law, Ireland's subtle constitutional arrangements are in the end irrelevant.
AP1 (Applicant): Whatever its educational structure, whatever its constitution provides, Ireland's obligations under the first protocol, Article 2, and under Article 3, a fundamental value, according to this court, those constitutional obligations remain.
AP1 (Applicant): Ireland seeks to distinguish van der Mizelle by saying that Ireland has not delegated any convention obligations.
AP1 (Applicant): Ireland confuses the dubious proposition of Irish constitutional law that it has not delegated educational duties it never possessed with the convention issue of delegation.
AP1 (Applicant): Because if Ireland has delegated no convention obligations as to education, then neither did the UK in Costello-Roberts.
AP1 (Applicant): Yet the court found just such a delegation.
AP1 (Applicant): In any event, the Irish constitutional proposition ignores its Article 42 duty to require that children receive a certain minimum education, moral, intellectual, and social.
AP1 (Applicant): But then child abuse could better undermine the fulfillment of that duty.
AP1 (Applicant): Costello-Roberts, A in the United Kingdom, and E in the United Kingdom are clear.
AP1 (Applicant): Be it in a public or a private school, the state's convention obligations as to inhuman and degrading treatment and as to education remain the state's obligations.
AP1 (Applicant): The state incorrectly seeks to distinguish Costello-Roberts by saying we don't rely on Article 2 of Protocol 1.
AP1 (Applicant): We do.
AP1 (Applicant): It then characterizes Costello-Roberts as turning on a finding that school discipline is integral to education, whereas sexual abuse is its antithesis.
AP1 (Applicant): But that's not essential to our reliance on Costello-Roberts.
AP1 (Applicant): What's essential is that the obligations cannot be delegated.
AP1 (Applicant): And children in schools are vulnerable to those placed in authority over them.
AP1 (Applicant): What is relevant is the power relationship between a principal and a pupil and the general foreseeability of its abuse.
AP1 (Applicant): In the Jupila case, this court held that Articles 1 and 3 together require measures to ensure that individuals are not subjected to inhuman or degrading treatment by private individuals.
AP1 (Applicant): Children in particular are entitled to state protection from child abuse.
AP1 (Applicant): The duty of proactivity, of preventative action, is all the higher where children are put in the control of those who have permission to beat them and whose authority they personally cannot question.
AP1 (Applicant): In Stork, the court held that retrospective measures alone do not effectively protect vulnerable individuals.
AP1 (Applicant): Prevention is required.
AP1 (Applicant): And it applied the state's obligation to supervise private institutions in which there is a general risk of violation of fundamental convention rights.
AP1 (Applicant): The same is true as to hospitals in the Calvelli and Cicciolo case against Italy.
AP1 (Applicant): And if hospitals, then schools, because it's beyond argument that children in schools are vulnerable to sexual abuse.
AP1 (Applicant): Again, A in the United Kingdom, if the duty applies in the private home, A fortiori, it applies in schools.
AP1 (Applicant): Macbeth Caille of this court requires of states a framework of law to provide protection.
AP1 (Applicant): Where we ask is the Irish preventative framework of law.
AP1 (Applicant): The tragedy of this case is how little Louise O'Keefe needed of her state.
AP1 (Applicant): For all the reference to margins of appreciation, for all the fear by reference to the Keenan case of the imposition of impossible, unreasonable, or disproportionate burdens on the state, she needed very little of her state.
AP1 (Applicant): Ireland's premise is that if only they had known, they would have acted.
AP1 (Applicant): Had they been told in 1971 of the complaint, they would have stopped the abuse in time to save Louise O'Keefe.
AP1 (Applicant): Had they been told in 1973, they could have helped Louise O'Keefe.
AP1 (Applicant): If you accept that premise, all that Louise O'Keefe needed of her state was a simple instruction to school managers that where they learned of serious abuse of children, sexual or otherwise, they must report it to state authorities.
AP1 (Applicant): No expense, no burden, no cost.
AP1 (Applicant): Nothing but an instruction, which by the standard of causation set in E in the United Kingdom could have had a real prospect of altering the outcome or mitigating the harm.
AP1 (Applicant): The failure to issue that simple instruction is sufficient to engage the responsibility of the state.
AP1 (Applicant): The starting point of the entire state argument is nobody told us about the abuse.
AP1 (Applicant): Had we but known, this is the two monkeys defense.
AP1 (Applicant): We saw no evil.
AP1 (Applicant): We heard no evil.
AP1 (Applicant): Unless the state satisfies you that it had in place an effective preventative system of law designed to bring the evil to its attention, we saw no evil, we heard no evil, is not a defense.
AP1 (Applicant): It is an admission of liability.
AP1 (Applicant): There is no evidence of any steps to see that sex abuse was brought to their attention once it was known to a manager.
AP1 (Applicant): Where do you find in the papers a single instruction to managers as to what to do if a complaint is made to you?
AP1 (Applicant): But in truth, state failure is more profound.
AP1 (Applicant): They say at paragraph 50, had they known of the abuse, LH would have lost his license to teach.
AP1 (Applicant): Chief Inspector McLennan said any other result was inconceivable.
AP1 (Applicant): No doubt a similarly complacent answer would have been given to Mr. Brander's victims
AP1 (Applicant): had they complained to this court before Ryan had exposed the Department of Education's true concerns.
AP1 (Applicant): As Ryan says, at no stage were the past, present, or potential future victims of Mr. Brander considered.
AP1 (Applicant): As Government Minister Martin said of the Brander scandal, there can be absolutely no excuse by reference to the standards of the time.
AP1 (Applicant): This is the Department of Education that now seeks to persuade this court of its compliance with convention duties as to child protection.
AP1 (Applicant): We say as to the immediate risk to individual criterion for preventative action that it applies only to operational obligations.
AP1 (Applicant): See Master Matteo and Italy and Opus and Turkey.
AP1 (Applicant): It does not apply to the mere issuing of regulations, instructions, and guidelines.
AP1 (Applicant): The problem in this case was not operational.
AP1 (Applicant): It was the absence of general preventative systems.
AP1 (Applicant): Second, and in principle, if the state must obviate a real and immediate risk, there is no reason why it should not also obviate a general or situational risk by reasonable general measures.
AP1 (Applicant): If needs be, we argue that the standard of immediate and real risk is unnecessarily rigid.
AP1 (Applicant): We invite the court to say simply that operational and regulatory obligations should be reasonable, not excessively burdensome, and proportional to the degree of known risk, whatever that degree may be.
AP1 (Applicant): That would allow for general, low burden measures, such as the issuing of regulations, instructions, and guidelines, to address locations of known but general risk to children in schools and similar institutions.
AP1 (Applicant): But however minimal the obligation on the state, could it ever be said that at any time, a duty to train and instruct managers in what to do in receipt of a complaint was a duty beyond the call of Article 3?
AP1 (Applicant): Would have cost nothing.
AP1 (Applicant): The hindsight argument is made.
AP1 (Applicant): We're told we apply modern standards to ancient times.
AP1 (Applicant): We say Article 3 always protected fundamental values.
AP1 (Applicant): Remember, the events underlying the X and Y against the Netherlands case took place only four years after Louisa O'Keefe was abused.
AP1 (Applicant): Ireland says there was simply no awareness of the risk of sexual abuse from a teacher in a situation such as this at that time.
AP1 (Applicant): We say that is untrue, and that Carrigan and Ryan clearly show it untrue.
AP1 (Applicant): As to the contemporary understanding of sex abuse, Ireland selectively quotes the Rollinson report which Ryan commissioned.
AP1 (Applicant): I urge you to read the entire paragraph, not least the following.
AP1 (Applicant): As early as 1952, the UK Home Office distributed a circular for all correspondents and heads of approved schools.
AP1 (Applicant): It drew their attention in precise detail to what should be done when indecent practices were committed on boys, either by other boys or by staff.
AP1 (Applicant): At times, it reads much like best advice today.
AP1 (Applicant): That's in 1952.
AP1 (Applicant): Ireland says, in effect, we knew enough to make sex abuse a crime, but we didn't know enough to take even basic measures to protect children from that crime, to prevent that crime or detect it.
AP1 (Applicant): This court inquired as to precise mechanisms, safeguards, and procedures to ensure complaints to managers were communicated to the state.
AP1 (Applicant): Ireland asserts that it's clear that Father O'Kelly did not convey the complaints to the department.
AP1 (Applicant): That's incorrect.
AP1 (Applicant): All that is clear is that he did not convey it to Inspector MacLennan and that the department can find no documentary record of any complaint.
AP1 (Applicant): If you look at Amnesty's publication in Paine's site, it records both the lack of Department of Education record-keeping as to complaints of sexual abuse and the absence of guidelines as to how to deal with it.
AP1 (Applicant): Professor Ferguson's report bears reading in full, but his observation is striking that there was almost complete absence of any protocols or procedures requiring the management of schools to respond to allegations or periodically check on a routine basis to ensure that there was no abuse.
AP1 (Applicant): And it rings even more true now that we've had the Ryan report and the Brander chapter.
AP1 (Applicant): The Irish Human Rights Commission record school management had no official guidance on how to deal with allegations or suspicions of child abuse.
AP1 (Applicant): Schools were under no duty to report such allegations to another authority, such as the Department of Education.
AP1 (Applicant): The state tells you in paragraph 69 the department issued specific guidance as to how to deal with complaints.
AP1 (Applicant): But all they produce is a grubby scrap of paper from 1970 telling departmental officials internally what to do if by some unhappiness chance they find themselves in receipt of a complaint.
AP1 (Applicant): There's no evidence that document was ever sent to anyone, much less a manager of schools.
AP1 (Applicant): The text is clear.
AP1 (Applicant): It relates only to what to do if the complaint actually reaches the department.
AP1 (Applicant): You may think in saying the words unhappy mischance, I'm being glib or unfair to the state.
AP1 (Applicant): If so, please read the Brander chapter of Ryan as to a national school teacher's 40-year career of sexual abuse.
AP1 (Applicant): A former pupil, now a teacher, told the department inspector about it.
AP1 (Applicant): He did nothing.
AP1 (Applicant): The former pupil wrote to the department.
AP1 (Applicant): It did nothing.
AP1 (Applicant): Ryan concludes, at no stage were the past, present, or potential future victims of Mr. Brander considered.