GRAND CHAMBER
 
 
 
 
 
 
CASE OF O’KEEFFE v. IRELAND
 
(Application no. 35810/09)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
28 January 2014
 
 
 
 
 

In the case of O’Keeffe v. Ireland,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Dean Spielmann, President,
 Josep Casadevall,
 Guido Raimondi,
 Ineta Ziemele,
 Mark Villiger,
 Isabelle Berro-Lefèvre,
 Boštjan M. Zupančič,
 Alvina Gyulumyan,
 Nona Tsotsoria,
 Zdravka Kalaydjieva,
 Nebojša Vučinić,
 Vincent A. de Gaetano,
 Angelika Nußberger,
 André Potocki,
 Krzysztof Wojtyczek
 Valeriu Griţco, judges,
 Peter Charleton, ad hoc judge,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 6 March and on 20 November 2013,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 35810/09) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Ms Louise O’Keeffe (“the applicant”), on 16 June 2009. 2. The applicant was represented by Mr E. Cantillon, a lawyer practising in Cork. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. 3. The applicant mainly complained under Article 3 of the Convention that the system of primary education had failed to protect her from sexual abuse by a teacher in 1973 and, under Article 13, that she did not have an effective domestic remedy in that respect. She also relied on Article 8 and Article 2 of Protocol No. 1, both alone and in conjunction with Article 14. She also complained of the length of her civil proceedings and of the absence of an effective domestic remedy in that respect, relying on Article 6 alone and in conjunction with Article 13. 4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). Ann Power-Forde, the judge elected in respect of Ireland, withdrew from sitting in the case (Rule 28). On 13 June 2012 the President of the Chamber decided to appoint Mr Justice Charleton to sit as an ad hoc judge (Article 26 § 4 of the Convention, and Rule 29 § 1). 5. On 26 June 2012 a Chamber of that Section (composed of Dean Spielmann, President, Mark Villiger, Karel Jungwiert, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, judges, Peter Charleton, ad hoc judge, and Claudia Westerdiek, Section Registrar) examined the case. The Chamber, unanimously, struck out the complaints regarding the length of the domestic proceedings and the lack of an effective domestic remedy in that regard, given the friendly settlement reached between the parties on those issues. It also, unanimously, declared admissible the remaining complaints. 6. On 20 September 2012 that Chamber (Angelika Nußberger, substitute judge, replaced Ganna Yudkivska who was unable to take part in the further consideration of the case (Rule 24 § 3)) relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24, with Mr Justice Charleton continuing to act as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 8. The applicant and the Government each filed further observations (Rule 59 § 1) on the merits. In addition, the Irish Human Rights Commission and the European Centre for Law and Justice had been given leave by the President of the Chamber (Article 36 § 2 of the Convention and Rule 44 § 3) to intervene in the written procedure and their submissions to the Chamber were admitted to the Grand Chamber file. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 March 2013 (Rule 59 § 3). 10. There appeared before the Court:
(a)  for the Government
Mr P. White,  Agent,
Mr  F. McDonagh, Senior Counsel,
Mr C. Power, Barrister, Counsel,
Ms S. Farrell, Office of the Attorney General, 
Ms M. McGarry, Department of Education and Skills, Advisers;
(b)  for the applicant
Mr D. Holland, Senior Counsel,
Mr A. Keating, Senior Counsel, Counsel,
Mr E. Cantillon, Solicitor,
Mrs M. Scriven, Solicitor, Representatives. The applicant also attended. 11. The Court heard addresses by Mr Holland and Mr McDonagh. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant was born in 1964 and lives in Cork, Ireland. A. Background
13. The following facts were not contested by the parties. 14. The applicant attended Dunderrow National School from 1968. The school was owned, through trustees, by the Catholic Bishop of the Diocese of Cork and Ross who was recognised by the Department of Education and Science (“the Department”) as the school’s patron. The manager (S.), acting on behalf of the bishop, was the local parish priest. The latter being elderly and infirm, a local priest (Ó.) was the de facto manager who acted on behalf of, and in the interests of, S. The term “manager” used below refers both to Ó. and to the management function he performed. Dunderrow National School had two teachers, one of whom (L.H.) was the school’s principal, a married man. Dunderrow was one of four national schools in the applicant’s parish. 15. In 1971 a parent of a child complained to the manager that L.H. had sexually abused her child. That complaint was not reported to the police, to the Department or to any other State authority and was not acted upon by the manager. 16. During the first six months of 1973 the applicant was subjected to approximately twenty sexual assaults by L.H. during music lessons in his classroom. During the time she attended those lessons, the applicant and her parents were unaware of the allegation made in 1971 about L.H. 17. In September 1973 other parents brought to the applicant’s parents’ attention similar allegations concerning L.H. Following a meeting of parents chaired by the manager about this, L.H. went on sick leave. In September 1973 he resigned from his post. Those allegations were not reported at that time to the police, to the Department or to any other State authority. In a brief conversation, the applicant’s mother asked her whether L.H. had touched her. The applicant responded to the effect that something of a sexual nature had happened but she did not recall the conversation going any further. In January 1974 the manager notified the Department that L.H. had resigned and named his replacement. Soon thereafter L.H. took up a position in another national school where he taught until his retirement in 1995. 18. Between 1969 and 1973, the inspector assigned to the region visited Dunderrow National School on six occasions which was, as he later stated in evidence, an above average number of visits. He met with L.H. and S. He attended parent meetings on the question of Dunderrow’s amalgamation with other schools. No complaint about L.H. was made to him. He observed the teaching work of L.H. and considered it satisfactory. 19. The applicant suppressed the sexual abuse. While she had significant psychological difficulties, she did not associate those with the abuse. In 1996 she was contacted by the police who were investigating a complaint made in 1995 by a former pupil of Dunderrow National School against L.H. The applicant made a statement to the police in January 1997 and was referred for counselling. During the investigation a number of other pupils made statements. L.H. was charged with 386 criminal offences of sexual abuse involving some twenty-one former pupils of the school during a period of about ten years. In 1998 he pleaded guilty to twenty-one sample charges and was sentenced to imprisonment. His licence to teach was withdrawn by the Minister for Education (“the Minister”) under Rule 108 of the National School Rules 1965 (“the 1965 Rules”). 20. In or around June 1998, and as a consequence of the evidence of other victims during the criminal trial and subsequent medical treatment, the applicant realised the connection between her psychological problems and the abuse by L.H. and understood the extent of those problems. B. Criminal Injuries Compensation Tribunal (“the CICT”)
21. In October 1998 the applicant applied to the CICT for compensation. An initial award (44,814.14 euros (EUR)) was made by a single judge. The applicant appealed to a CICT panel. She claimed that the CICT gave her the option of continuing her appeal (at the risk of finding that her CICT application would be rejected as out of time) or of accepting the initial offer of the CICT with some additional expenses (EUR 53,962.24, the non-pecuniary aspect being EUR 27,000). The applicant accepted the offer by letter of 5 November 2002 and gave the standard undertaking to repay the CICT award from any other award she may receive, from whatever source, in relation to the same injury. The award was made on an ex gratia basis. Since the State is never a party to CICT proceedings, it became aware of this award later before the High Court (see directly below). C. Civil action for damages (No. 1998/10555P)
1. High Court
22. On 29 September 1998 the applicant instituted a civil action against L.H. and the Minister, as well as against Ireland and the Attorney General, claiming damages for personal injuries suffered as a result of assault and battery including sexual abuse by L.H. Her claim against the latter three defendants (“the State Defendants”) was threefold: (a) negligence by the State arising out of the failure of the State Defendants in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to protect against, and put a stop to, the systematic abuse by L.H. since 1962; (b) vicarious liability of the State Defendants for the acts of L.H. since, inter alia, the true relationship between him and the State was one of employment; and (c) liability given the applicant’s constitutional right to bodily integrity, the responsibility of the State Defendants to provide primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility. 23. Since L.H. did not file a defence, on 8 November 1999 the applicant obtained judgment in default against him. On 24 October 2006 the High Court assessed and awarded damages payable by L.H. in the sum of EUR 305,104, comprising EUR 200,000 in general damages, EUR 50,000 in aggravated damages, EUR 50,000 in exemplary damages, and EUR 5,104 in special damages. The applicant took enforcement proceedings. L.H. claimed he had insufficient means and she obtained an instalment order of EUR 400 per month. The first payment was received in November 2007 so that she has been paid in the region of EUR 31,000 to date. She registered a judgment mortgage against that part of the family home owned by L.H. 24. As regards her case against the State Defendants, she requested a Professor Ferguson to advise her on the question of the adequacy of child-protection mechanisms in Ireland in the 1970s. He responded by letter of 14 April 2003. Professor Ferguson agreed that, if the child-protection protocols existing in 2003 had been in place in 1973, it was very likely that the applicant’s abuse would have been acted upon in a manner which would have ensured the promotion of her welfare. He feared that pleading the case on the basis of what the State should have known at the time would be unsuccessful because it would not be possible to project onto the past the knowledge and systems of accountability that existed in the present day. 25. The High Court hearing against the State Defendants began on 2 March 2004. On 5 March 2004, while the applicant was presenting her evidence, the High Court judge, in response to the applicant’s complaint regarding the absence of a State system for adverting to and addressing sexual abuse in national schools, asked Counsel for the applicant as follows:
“What evidence do I have, or what should I have deduce[d] from the evidence that has been given that either the system in operation was a bad system, and I will come back to that, or that there was an alternative system that should have been applied, and what that alternative system might have been.”
26. When the applicant’s case concluded, the State Defendants applied for a direction to strike out the case on the basis that no prima facie case had been made out by the applicant as regards all three grounds, submitting, inter alia, that there was no evidence of negligence. On 9 March 2004 the High Court accepted the State Defendants’ application, the court being “satisfied that the plaintiff had not established a case in negligence against the [State Defendants]” (the “non-suit” order). The court did not and was not called upon to distinguish between the two bases of the negligence claim. However, a prima facie case had been made out on the questions of vicarious and constitutional liability and evidence would be called from the defendants on those matters. The trial finished on 12 March 2004. 27. On 20 January 2006 the High Court delivered judgment. It found that the action was not statute barred. It also concluded that the State was not vicariously liable for the sexual assaults perpetrated by L.H. given the relationship between the State and the denominational management of national schools. Although counsel for the applicant had orally suggested that the State should be vicariously liable for the inaction of the manager, the High Court judgment did not address this point. Finally, the High Court found that no action lay for a breach of a constitutional right where existing laws (in this case, tort) protected that right. The costs of the proceedings against the State Defendants were awarded against the applicant. 2. Supreme Court (O’Keeffe v. Hickey, [2008] IESC 72)
28. In May 2006 the applicant appealed to the Supreme Court. Her Notice of Appeal challenged the finding on vicarious liability and referred to two matters: the absence of reasons for the interim ruling of 9 March 2004 and the High Court judgment’s failure to rule on the vicarious liability for the inaction of the manager. Mr Justice Hardiman described the appeal as limited to the State’s vicarious liability for the acts of L.H. and the manager, although he commented in his judgment on the other two initial claims of the applicant (direct negligence and the constitutional claim). Mr Justice Fennelly also considered that the appeal concerned only vicarious liability for the acts of L.H., although he refused to accept that the State was vicariously liable for the manager. 29. The appeal was heard from 11 to 13 June 2006. By a majority judgment of 19 December 2008 (Hardiman J and Fennelly J, with whom Chief Justice Murray and Mr Justice Denham concurred and Mr Justice Geoghegan dissented), the Supreme Court dismissed the appeal. 30. Hardiman J described in detail the legal status of national schools. While the arrangements for national-school education might “seem rather odd today”, they had to be understood in the context of Irish history in the early nineteenth century. Following denominational conflict and the later concession of Catholic emancipation in 1829, the dissenting churches and the Catholic Church wished to ensure that children of their denominations be educated in schools controlled by the denomination and not by the State or the established (Anglican) Church. Those churches were “remarkably successful” in achieving this aim: from the very beginning of the Irish system of national education (encapsulated in the “Stanley letter” of 1831), State authorities paid for the system of national education “but did not manage it or administer it at the point of delivery”. The latter function was left to the local denominational manager. While State funding was accorded on a proportionate basis to all denominational schools, the population was at the time overwhelmingly Catholic so that the majority of national schools had Catholic patrons and managers. 31. Hardiman J went on to describe as “remarkable” the fact that, whilst in nineteenth-century Europe firmer distinctions were being drawn between Church and State and Church influence in the provision of public services (including education) was ebbing, in Ireland the position of the Church became stronger and more entrenched. He adopted the evidence of one expert witness (in the history of education in Ireland) who described the position after the inception of the Irish Free State in 1922 and noted that the Catholic managers in this “managerial” system
“were very clearly articulate and very absolutely ... precise in how they interpreted what the situation was for national schools in the new Ireland ... It had to be Catholic schools under Catholic management, Catholic teachers, Catholic children”. 32. That expert witness went on to describe the answer of the Catholic Church in the 1950s to a request by a teachers’ trade union to have local committees deal with maintaining and repairing school buildings. The Catholic Church had responded that there could be no interference whatever with the “inherited tradition of managerial rights of schooling”. The limited proposal of the union was considered to be the thin edge of the wedge because, in due course, the request might be to interfere with “other aspects of the manager’s authority vis-à-vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years”. Hardiman J referred to the “urgent desire” of the denominations to maintain their role in primary education. 33. As Hardiman J explained, the Constitution reflected this managerial structure: the obligation in Article 42 § 4) on the State to “provide for” free primary education reflected a largely State-funded, but entirely clerically administered, system of education. As a result there were approximately 3,000 national schools in Ireland: most were under the control of Catholic patrons and managers, a few were under the control of other denominations and even fewer were controlled by non-denominational groups. 34. Hardiman J noted that, in recent times and after more than a century and a half, the provision of education was belatedly and at least partially placed on a statutory basis by the Education Act 1998; prior to that Act the system had been administered by the 1965 Rules as well as by other ministerial letters, circulars and notes. 35. As to what could be gleaned from the 1965 Rules, Hardiman J noted:
“The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher. He inspected the schools for their academic performance, other than religious instruction, but it did not go further than that. He was ... deprived of the direct control of the schools, and of the enormous power which that brings, because ‘there was interposed between the State and the child the manager or the committee or board of management’. Equally, the Minister did not appoint the manager or the teacher or directly supervise him. This, indeed, was the essence of the ‘managerial system’. I cannot see, on the evidence, that he had any scope whatever to make a personal judgment about either of these two individuals. Moreover, it seems to have been instinctively recognised by the parents who complained about the first defendant that the person with direct authority to receive the complaint and do something about it was the clerical and clerically appointed manager. No complaint, on the evidence, was directed to the Minister or to any State body. The matter was handled, so to speak, ‘in house’ at the election of the complainants. The end result of the process was a voluntary resignation followed by the employment of [L.H.] in another school in the vicinity. All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.”
36. Hardiman J observed that the sexual abuse of a pupil was the negation of what L.H. was employed to do but he also found that in 1973 it “was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school”. He considered it “notable” that she did not sue the patron, the diocese of which he was bishop, his successors or his estate, the trustees of the property of the Diocese of Cork and Ross (owners of the school), the manager or his estate or successors. 37. Hardiman J concluded that, having regard to the relevant test for vicarious liability and to the above-described arrangements for the control and management of national schools, the State Defendants were not liable to the applicant for the wrongs committed against her. In particular, even applying the wider form of vicarious liability invoked, the Minister’s absence of direct control over L.H., long since ceded to the manager and the patron, prevented a finding against the Minister. The relationship of L.H. and the State – a “triangular one with the Church” – was entirely sui generis and a product of Ireland’s unique historical experience. The manager was
“the nominee of the patron, that is of a power other than the Minister and he did not inform the Minister of any difficulties with, or complaints about, [L.H.] or of his resignation and appointment to teach elsewhere until they were faits accomplis. He was the agent not of the Minister, but of the Catholic Church, the power in whose interest the Minister was displaced from the management of the school”. 38. Hardiman J commented on two of the applicant’s original claims which had “not been proceeded with”. 39. As to the claim of negligence by the State, he remarked
“... this is a claim which could more appropriately be made against the manager. It was he who had the power to put in place appropriate measures and procedures governing the running of the school. The Minister can hardly be responsible for a failure to ‘cease’ a course of action of whose existence he was quite unaware”. 40. As to the claim about the responsibility of the State in the provision of primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility, Hardiman J stated:
“I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Kenny J pointed out in Crowley v. Ireland [1980] I.R. 102, deprived of the control of education by the interposing of the patron and the manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department. I do not read the provisions of Article 42.4 as requiring more than that the Minister shall ‘endeavour to supplement and give reasonable aid to private and corporate educational initiative’, to ‘provide for free primary education’. ... In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the patron and the manager.”
41. Hardiman J concluded by pointing out that nothing in the judgment could be interpreted as suggesting liability on the part of the Church and, in any event, it was quite impossible to do so because those authorities had not been heard by the Supreme Court since the applicant had not sued them. 42. Fennelly J, who delivered the other majority judgment, began by noting that the “calamity of the exploitation of authority over children so as to abuse them sexually” had shaken society to its foundations. Cases of sexual abuse had preoccupied the criminal courts and the Supreme Court for many years and it was surprising that that court was confronted for the first time with questions relating to the liability of institutions including the State for sexual abuse of schoolchildren in a national school by a teacher. 43. Fennelly J also described in some detail the history and consequent legal status of national schools, which system had survived independence in 1922 and the enactment of the Constitution in 1937. He accepted the expert’s evidence that it was not a State system but rather a “State-supported system”. He noted the clear division of power between the State (funding and fixing the curriculum) and the manager (day-to-day running of the school including hiring and firing teachers), noting that the different religions were determined to preserve and guard their own distinct religious education so that national schools developed on a denominational basis. 44. He considered inspectors to be a crucially important part of the system of State oversight and maintenance of standards which enabled the Minister to be satisfied about the quality of the system. However, he noted that the inspection regime did not alter the division of responsibilities between the State and the manager, the inspectors having no power to direct teachers in the carrying out of their duties. The 1965 Rules reflected this allocation of responsibilities between the Church and State authorities. Even if, in modern times, the State played a more intrusive role, responsibility for day-to-day management remained with the manager. He concluded that the State was not vicariously liable for the acts of L.H. or, for the same reasons, for the failure of the manager to report the 1971 complaint to the State. L.H. was not employed by the State but, in law, by the manager. While L.H. had to have the qualifications laid down by the Minister and had to observe the 1965 Rules and while the State had disciplinary powers in those respects, L.H. was not engaged by the State and the State could not dismiss him. 45. Referring back to the reference in the Notice of Appeal to the State’s liability for the failure of the manager to report the 1971 complaint, Fennelly J concluded that “[f]or the same reason, insofar as it is necessary to say so, there can be no liability for the failure of [the manager] to report the 1971 complaint. [The manager] was not the employee of the second defendant.”
46. Geoghegan J dissented. He accepted that neither the Department nor its inspectors had any knowledge of the assaults. He noted that, for all practical purposes, most primary education in Ireland took the form of a joint enterprise between Church and State and he considered that that relationship was such that there was a sufficient connection between the State and the creation of the risk as to render the State liable. Geoghegan J relied, notably, on the role of school inspectors. He examined in some detail the evidence given by, and concerning the role of, school inspectors noting, inter alia, that if an allegation of sexual assault by a teacher on a national-school pupil was considered well-founded by an inquiry set up by the Department, it could lead to the withdrawal of recognition or to a police investigation and, if the police found the complaint justified, to the withdrawal of the teacher’s licence to teach. 47. By a judgment of 9 May 2009 the Supreme Court vacated the High Court order for costs against the applicant since it was not disputed that hers was an important and complex test case. It determined that each party had to bear its own costs related to the action against the State Defendants. 48. The applicant was legally represented throughout the civil proceedings, although she did not have legal aid. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Primary education in Ireland
1. Background
49. The Court refers to the description of the history and structure of the national-schools system of primary education provided by the Supreme Court in O’Keeffe v. Hickey, ([2008] IESC 72) and, notably, by Hardiman J and Fennelly J (see paragraphs 30-35 and 42‑44 above). 50. Section 4 of the School Attendance Act 1926 required parents to ensure their children attended a national school or another suitable school, unless there was a reasonable excuse for not so doing, for example if the child was receiving suitable primary education elsewhere, if there was no national school accessible to which the parent did not object on religious grounds, or if the child was prevented from attending by some other sufficient cause. Attendance in full-time education was therefore compulsory for all children between 6 and 14 years of age until 1969 when the official school-leaving age was increased to 16. Primary education has been universally free in Ireland since the nineteenth century. 51. The vast majority of children attending primary school attended “national schools” which are State-financed and denominational primary-education establishments. Department reports for 1972/73 and 1973/74 recorded the existence of 3,776 and 3,688 national schools, respectively. The Department’s statistical report for February 1973 indicated that 94% of primary schools were national schools. According to the 1965 Investment in Education Report, 91% of national schools were Catholic-run and catered for 97.6% of national-school pupils while 9% were Protestant-run, catering for 2.4% of such pupils. A 2011 report by the Department notes that approximately 96% of primary schools remained under denominational patronage and management (including 89.65% under Catholic patronage and management). 52. In 1963/64 there were 192 fee-paying non-State-aided primary schools for approximately 21,000 children which represented about 4 to 4.5% of all primary-school pupils. The vast majority of these schools were in urban areas, the great majority of which were in Dublin. 53. The “Commission on School Accommodation’s Report on the Revised Criteria for the Establishment of New Primary Schools” in February 2011 confirmed that, until the 1970s, the only choice effectively available to parents was the local national school. It considered that by the end of the 1970s there was evidence of change with the establishment in 1978 of the first multi-denominational school and a growth in Irish language inter-denominational and multi-denominational schools. 2. The 1937 Constitution
54. Article 42 is entitled “Education” and reads as follows:
“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. 2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State. 3. (1)  The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State. (2)  The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. 4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation. 5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
55. In McEneaney v. the Minister for Education ([1941] IR 430), the Supreme Court observed that for “more than a century it has been recognised that the provision of primary education is a national obligation”. Article 42 § 4) conferred on children a right to receive free primary education and the words “provide for” meant that the State did not itself have to educate children but rather had to ensure that appropriate education was provided to them (Crowley v. Ireland [1980] IR 102). 3. Relevant legislation
56. The Children Act 1908 governed child protection and contemplated State intervention in the form of taking a child into care in cases of inter-familial abuse. The Education Act 1998 (“the 1988 Act”) was the first comprehensive legislation on education since the foundation of the State. It put on a statutory basis the State-funded and privately managed nature of primary education, making no fundamental structural changes thereto. 4. Rules for national schools (“the 1965 Rules”) and relevant ministerial circulars
57. Rules in place before independence in 1922 were applied to national schools until the 1965 Rules were adopted by the Department. While the 1965 Rules were neither primary nor secondary legislation, they have legal force and form part of the relevant statutory regime (Brown v. Board of management of Rathfarnham Parish national school and Others ([2006] IEHC 178). Otherwise, the Department regulated matters within its remit by notes, circulars and other official Department instruments. The Minister could withdraw recognition from a school or withdraw an individual teacher’s licence if the 1965 Rules were not complied with (Rules 30 and 108 of the 1965 Rules, respectively). 5. Managers and boards of management
58. Rule 15 of the 1965 Rules provided that the manager was charged with the direct government of the school, the appointment of the teachers and, subject to the Minister’s approval, their removal. A manager was to visit a school and ensure the 1965 Rules were complied with (Rule 16). Subject to the authority of the manager, the principal was responsible for discipline, the control of the other members of the teaching staff and all other matters connected with school arrangements (Rule 123(4)). 59. Rule 121 set out rules for teachers’ conduct: they had to, inter alia, act in a spirit of obedience to the law; pay the strictest attention to the morals and general conduct of their pupils; take all reasonable precautions to ensure the safety of their pupils; and carry out all lawful instructions issued by the manager. Rule 130 required teachers to have a lively regard for the improvement and general welfare of their pupils, to treat them with kindness, combined with firmness, and to govern them through their affections and reason and not by harshness and severity. 60. Most primary schools now have boards of management. A ministerial circular (16/76) set out arrangements until the 1998 Act put the boards on a statutory basis. Section 14 of that Act provides that it is the duty of the patron to appoint, where practicable and in accordance with the “principle of partnership”, a board the composition of which is agreed between the Minister and the education partners. As bodies corporate with perpetual succession, the boards could sue and be sued. 6. Inspectors
61. The 1965 Rules envisaged that the Minister and persons authorised by him (inspectors) could visit and examine the schools whenever they thought fit (Rule 11). Rule 161 defined inspectors as being agents of the Minister required to supply the Minister with such local information as he or she might require for the effective administration of the system. They were required to call the attention of managers and teachers to any rules which appeared to them to be being infringed. They were entitled to communicate with the manager with reference to the general condition of the school “or to matters requiring the manager’s attention, making such suggestions as they may deem necessary”. An inspector was required to pay frequent incidental visits to the schools in his district and to make obligatory annual visits to assess the work of teachers. Circular 16/59 provided guidance to inspectors as to their role vis-à-vis managers and teachers, as to the manner in which incidental and general inspections were to be carried out and as regards their assessment of the work of teachers. 7. Complaints
62. A Guidance Note of 6 May 1970 outlined the practice to be followed as regards complaints against teachers. The complainant was to be informed that the matter was one for the manager, in the first instance, and asked to clarify whether the complaint had been notified to the manager. The manager had to obtain observations from the relevant teacher and to forward those observations, together with the manager’s own views, to the Department. The Deputy Chief Inspector within the Department would then identify whether an investigation was required. If so, the inspector was to interview the manager, the teacher and parents. If an inquiry led to relevant findings against the teacher, Rule 108 authorised the Minister to take action against a teacher if the latter had conducted him or herself improperly or failed or refused to comply with the 1965 Rules. The Minister could pursue the teacher’s prosecution, withdraw recognition and/or withdraw or reduce the teacher’s salary. As noted above, the manager could dismiss a teacher, subject to the Minister’s approval. B. Criminal law and related matters
63. The sexual abuse of a minor was prohibited by sections 50 and 51 of the Offences Against the Person Act 1861 (as amended). The Criminal Law Amendment Act 1935 (“the 1935 Act”) was designed to make further provision for the protection of young girls and to amend the law concerning sexual offences. Sections 1 and 2 of the 1935 Act created the offences of defilement of girls under 15 years of age and of girls between 15 and 17 years of age. Section 14 of the 1935 Act also provides:
“It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.”
Consequently, any girl under 15 years of age cannot consent to any form of sexual contact and any such contact was (and still is) a crime. In addition to these statutory offences, these acts amounted to ordinary assault. 64. There was no limitation period applicable to indictable offences in Ireland so that an offender could be prosecuted until the end of his or her life. 65. A victim can apply for compensation for injury suffered as a result of violent crime under the Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months, but it can be extended. The initial decision is taken without a hearing and a hearing is held in private before a division of the CICT. The appeal decision is final. Compensation is paid on an ex gratia basis. It covers expenses and losses (out-of-pocket expenses and bills less social welfare payments, salary or wages received while on sick leave) and, until 1986, non-pecuniary loss. C. Civil law and related matters
66. A tort is a civil wrong which causes someone to suffer loss resulting in legal liability for the person who commits the tortious act, the tortfeasor. The tort of negligence requires proof that there was a duty of care between the plaintiff and the defendant (which involves establishing the existence of a relationship of proximity between the parties such as would call for the exercise of care by one party towards the other), that that duty was breached and that that breach was causative of damage (for example, Beatty v. The Rent Tribunal [2005] IESC 66). 67. Vicarious liability is the attribution of liability to a person or entity who did not cause injury and who may not be at fault but who has a particular legal relationship to the person who did cause the injury, and who himself was at fault, including through negligence. Legal relationships that can lead to vicarious liability include the relationship of employer and employee. 68. It is also possible to rely on the Constitution to seek redress against an individual for a breach of one’s constitutional rights. In Meskell v. CIE [1973] IR 121), the court stated:
“... if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right that person is entitled to seek redress against the person or persons who have infringed that right.”
Such a resort to constitutionally created torts only occurs if there is a gap in existing tort law which needs to be supplemented. D. Relevant public investigations and child-protection developments
1. The Carrigan Report 1931
69. The Carrigan Committee was appointed in 1930 to consider whether certain criminal statutes needed amendments and to make proposals to deal with “the problem of juvenile prostitution”. It held seventeen sittings, heard twenty-nine witnesses and considered other written submissions. 70. On 20 August 1931 the Committee submitted its final report to the Minister for Justice. The report recommended a combination of social and legislative reforms as regards, inter alia, sexual crimes against minors. 71. The Police Commissioner was an important witness before the Committee. Prior to appearing, he submitted statistical information he had gleaned from responses to a circular issued by him to over 800 police stations about the prosecution of sexual offences from 1924 to 1930 including for the offences of “defilement, carnal knowledge or rape” of girls under 10 years of age, between 10 and 13, between 13 and 16, between 16 and 18 and over 18 years of age. He submitted a detailed analysis of those statistics noting, inter alia, that there was an “alarming amount of sexual crime increasing yearly, a feature of which was the large number of cases of criminal interference with girls and children from 16 years downwards, including many cases of children under 10 years of age”. He was of the opinion that less than 15% of sexual crime was prosecuted for various reasons including the reluctance of parents to pursue matters for various reasons. 72. On the advice of the Department of Justice (in a memorandum accompanying the report), neither the evidence before, nor the report of, the Carrigan Committee was published. In so advising, the Department of Justice criticised the report in several respects and noted that the obvious conclusion to be drawn from it was that the ordinary feelings of decency and the influence of religion had failed in Ireland and that the only remedy was by way of police action. The debate on the report took place in a parliamentary committee. Several recommendations were implemented including the adoption of the Criminal Law Amendment Act 1935 (see paragraph 63 above). The Department of Justice’s files on this report were published in 1991. Further archival material was released in 1999. 2. Reformatory and industrial schools
73. Reformatory schools were established in the 1850s and industrial schools in the 1860s. These schools were mainly denominational and State-funded. The former received young offenders but there were never more than a few of such schools. However, there were fifty or so industrial schools which were schools for the training of children: children were lodged, clothed and fed as well as taught (section 44 of the Children Act 1908). From 1936 to 1970, a total of 170,000 children and young persons (involving about 1.2% of the relevant age group) entered industrial schools. The average stay was approximately seven years. The great majority of children were committed to industrial schools because they were “needy” and the next most frequent grounds of entry were involvement in a criminal offence or non-attendance at school. Each of these grounds involved committal by the District Court. Section 7 of the Rules and Regulations for Industrial Schools 1933 provided that children’s literary instruction would be in accordance with the national-schools programme and set down recommended hours for both literary instruction and industrial training. 3. The Cussen and Kennedy Reports on reformatory and industrial schools
74. The Cussen Report, published in 1936, was commissioned by the State into the running of reformatory and industrial schools. The report endorsed the system contingent on its implementing fifty-one conclusions and recommendations. The system continued largely unchanged until a later committee, set up by the State and chaired by Justice Eileen Kennedy, surveyed these schools. The Kennedy Report was published in 1970, when the reformatory and industrial school system was already in decline. The closure of certain schools was recommended and other proposals for change were made. It found, notably, that the system of inspection had been totally ineffective and it recommended, together with other reporting mechanisms, the establishment of an independent statutory body to ensure the highest standards of child care and to act, inter alia, as a watchdog. 4. The Ryan Report on reformatory and industrial schools
75. Following public disclosures and controversies in the late 1980s and early 1990s about, notably, clerical child abuse in Ireland, the Prime Minister issued the following written statement on 11 May 1999:
“On behalf of the State and of all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue.”
76. The Commission to Inquire into Child Abuse Act 2000 was adopted (amended in 2005). A Commission (later known as the Ryan Commission) investigated and reported on child abuse (including sexual abuse) primarily in reformatory and industrial schools. Since there were relatively few reformatory schools, the Commission’s work principally concerned industrial schools. 77. The Commission’s mandate mainly covered the 1930s to 1970s, the period between the Cussen and Kennedy Reports. Evidence was collected over a period of nine years and included voluminous documentation, expert evidence and the testimony of around 1,500 complainants. The “Investigation Committee” heard evidence from witnesses who wished to have their allegations investigated whereas the “Confidential Committee” provided a private forum for witnesses to recount abuse suffered by them. The evidence to the latter committee was therefore unchallenged. 78. The Commission reported in May 2009 (“the Ryan Report”). It found that there had been widespread, chronic and severe physical, including sexual, abuse of children mainly by clergy in the reformatory and industrial schools. While the religious authorities managed cases of abuse so as to protect the congregations and minimise the risk of public disclosure, the report confirmed that they had reported complaints of sexual abuse of pupils by lay persons to the police. The Secretary General of the Department, in evidence to the Investigation Committee, regretted the significant failings in its responsibility to children in the reformatory and industrial schools: while those institutions were privately owned and operated, the State had a clear responsibility to ensure that the care children received was appropriate and the Department had not ensured a satisfactory level of care. Complaints of clerical child abuse were seldom reported to the Department itself and it had dealt inadequately with the complaints which were received. 79. Chapter 14 of Volume 1 (“the Brander Chapter”) examined the career of “a serial sexual and physical abuser” who was a lay teacher in around ten schools (including six national schools) for forty years ending in 1980. After retirement, he was convicted on numerous charges of sexual abuse of pupils. The report noted that, when parents had tried to challenge his behaviour in the 1960s and 1970s, he was protected by diocesan and school authorities and moved from school to school. Evidence was given of complaints to the police in the 1960s. Complaints to the Department in the early 1980s were ignored, an attitude which, as the Department accepted before the Commission, was impossible to defend even by the standards of the time. Not only was the investigation shocking in itself, but it illustrated “the ease with which sexual predators could operate within the educational system of the State without fear of disclosure or sanction”. 80. Volume III comprised the Report of the Confidential Committee which heard evidence of abuse from 1930 to 1990 from 1,090 persons about 216 institutions which comprised mainly reformatory and industrial schools but also included national schools. The Committee heard eighty-two reports of abuse from seventy witnesses in relation to seventy-three primary and second level schools: most concerned children leaving prior to or during the 1970s and sexual abuse was reported by over half of the witnesses. Contemporary complaints were made, inter alia, to the police and the Department. Certain witnesses emphasised the public, and therefore evident, nature of the sexual abuse. 81. Volume IV, Chapter 1, concerned the Department which had legal responsibility under the Children Act 1908 for children committed to the reformatory and industrial schools. The Department had insufficient information because its inspections were inadequate. Department officials were aware that abuse occurred and should have exercised more of the Department’s ample legal powers over the relevant schools in the interests of the children, such as the power to remove a manager. However, the Department made no attempt to impose changes that would have improved the lot of the children in those schools. Indeed:
“The failures by the Department ... [could] also be seen as tacit acknowledgment by the State of the ascendancy of the Congregations and their ownership of the system. The Department[‘s] Secretary General ... [stated] that the Department had shown a ‘very significant deference’ towards the religious Congregations. This deference impeded change, and it took an independent intervention in the form of the Kennedy Report in 1970 to dismantle a long out-dated system.”
82. Volume V contained copies of, inter alia, expert reports. Certain complainants had briefed a senior lecturer in Irish history, Professor Ferriter, to address the proposition that the State had only become aware, at a policy level, of the physical abuse of minors in the 1970s and of the sexual abuse of minors in the 1980s. The Commission took over as sponsor of his report and annexed it to its own report. Professor Ferriter’s report put the events before the Ryan Commission in their historical context. He described the Carrigan Report (1931) as a “milestone” as regards the provision of compiled information about the rate of prosecution of sexual crime in Ireland. He also provided and analysed later prosecution statistics (from the 1930s to the 1960s) drawn from criminal-court archives. The police had been quite vigorous in their prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the twentieth century in Ireland. Professor Ferriter went on to point out that the criminal-court archives demonstrated a “consistently high level of sexual crime directed against young boys and girls”. While most of those cases were not recorded in the media, he considered that the police had extensive contemporaneous knowledge of the existence of such crimes. 83. Volume V annexed a research report completed by Mr Rollison, requested by the Ryan Commission itself and entitled “Residential Child Care in England, 1948-1975: A History And Report”. He set out the history of residential school care in England during the period 1948 to 1975. Under the heading “Abuse”, Mr Rollison indicated that, prior to the mid-1980s, there was “little professional or adult sensitisation either to the word or to the possibility of abuse” and that it was “essential to avoid the trap and potential excesses” of judging this period by today’s standards. 84. The Ryan Report contained several recommendations. It was considered important, as a first step, for the State to admit that abuse of children occurred because of failures of systems and policy, of management and administration, as well as of senior personnel who were concerned with the reformatory and industrial schools. A series of other recommendations were made about the development and review of child-orientated State policies and services, about accountability, about the necessity for adequate and independent inspections of all services to children and for the fullest implementation of “Children First: National Guidelines for the Protection and Welfare of Children” (see paragraph 89 below). 5. Later reports on sexual abuse
85. Later public inquiries and reports criticised the response by the Catholic Church to allegations of child sexual abuse by the clergy. 86. The Ferns Report 2005 identified over 100 complaints of child abuse made between 1962 and 2002 against twenty-one priests of the Diocese of Ferns. The report criticised the response of the Church but referenced few complaints to the State authorities prior to or during the 1970s. 87. The Murphy Report 2009 concerned the handling by the Church and State of complaints of child abuse made between 1975 and 2004 against clergy of the Archdiocese of Dublin. The report accepted that child sexual abuse by clerics was widespread during the relevant period. While the need for child-protection legislation had been clearly recognised in the early 1970s, the legislative delay until the early 1990s was described as extraordinary. 88. In 1996 the Irish Catholic Bishops adopted a framework document entitled “Child Sexual Abuse: Framework for a Church Response”. The Cloyne Report 2011 examined the response of the Catholic Church authorities to complaints made to them about clerical sexual abuse after the framework document was adopted, a point at which those authorities could reasonably be considered to have been aware of the extent of the problem and of the manner of dealing with it. The report was highly critical of the response of the Church, even during this later period. 6. Additional child-protection developments
89. In November 1991 the Department issued guidelines on procedures for dealing with allegations or suspicions of child abuse (Circular 16/91). They were updated in 2001 (“Child Protection – Guidelines and Procedures”) and in 2006 (“Child Protection Guidelines and Procedures for Primary Schools”). In 1999 the first comprehensive framework for child protection was adopted by the State (“Children First: National Guidelines for the Protection and Welfare of Children”). These guidelines were to assist in the identification and reporting of child abuse and to improve professional practices in organisations providing services to children and families. The code has been updated since then, most recently in 2011. The Government have published the Children First Bill 2012 with a view to ensuring effective implementation of these guidelines. 90. The Ombudsman for Children was established in 2002 to promote public awareness of children’s rights. New and focused criminal offences were adopted including the offence of reckless endangerment of a child (section 176 of the Criminal Justice Act 2006). Various compensation schemes have been set up providing redress mainly to abuse victims from reformatory and industrial schools. The “children’s rights” referendum of 2012 led to the approval of the thirty-first amendment to the Constitution which proposes to insert provisions, orientated towards child rights and protection, into Article 42 of the Constitution. The amendment has not come into force pending litigation. III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The Council of Europe
91. The Parliamentary Assembly of the Council of Europe (“PACE”) first made recommendations concerning child protection in 1969 with its Recommendation 561 entitled “Protection of Minors against ill-treatment”. Although primarily concerned with the beating of children in the home, it recommended that States be invited to “take all necessary measures to ensure that the competent ministries and departments are aware of the gravity and extent of the problem of children subject to physical or mental cruelty” and, further, to “request the official services responsible for the care of maltreated children to coordinate their action as far as possible with the work undertaken by private organisations”. Recommendation No. R (79) 17 of the Committee of Ministers on the protection of children against ill-treatment builds on this PACE Recommendation: governments were to take all necessary measures to ensure the safety of abused children “where the abuse is caused by acts or omissions on the part of persons responsible for the child’s care or others having temporary or permanent control over him”. 92. The European Social Charter 1961 provides in Article 7 that children and young persons have the right to special protection against physical and moral hazards to which they are exposed. B. The United Nations
93. The Geneva Declaration of the Rights of the Child was adopted by the League of Nations in 1924 and emphasised, as a preamble to its five protective principles, that mankind owed to the child “the best that it had to give”. By unanimous vote in 1959, the General Assembly of the United Nations adopted its Declaration of the Rights of the Child extending the 1924 Declaration. This 1959 Declaration is prefaced by the general principle that a child, by reason of his physical and mental immaturity, needed special safeguards and care. Principle 2 provides that a child shall enjoy special protection and shall be given opportunities and facilities to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity, the best interests of the child being always paramount. Principle 8 provides that the child shall in all circumstances be among the first to receive protection and relief and Principle 9 states that the child shall be protected against all forms of neglect, cruelty and exploitation. 94. The Universal Declaration of Human Rights 1948 (UDHR) contains two Articles which expressly refer to children – Article 25 on special care and assistance and Article 26 on the right to free elementary education – as well as the catalogue of human rights which apply to all human beings including the right not to be subjected to cruel, inhuman or degrading treatment. 95. Article 24 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that “every child shall have, without any discrimination ... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”. Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESC) requires States to take steps, including legislating, to progressively realise the rights guaranteed by the Covenant. Article 10 of the ICESC consistently stipulates that special measures of protection and assistance should be taken on behalf of the young. Article 12 addresses the right of all to “the enjoyment of the highest attainable standard of physical and mental health”, and incorporates a specific provision under which States Parties are obliged to take steps for the provision for the healthy development of children. Both Covenants were opened for signature in 1966 and they were signed and ratified by Ireland in 1973 and 1989 respectively. 96. The Preamble to the 1989 United Nations International Convention on the Rights of the Child recalls, inter alia, the various child-protection provisions of the 1924 and 1959 Declarations, the UDHR, the ICCPR and the ICESC. Article 19 provides that the State shall protect the child from maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims. THE LAW
97. The applicant complained that the State failed to protect her from sexual abuse by a teacher in her national school and that she did not have an effective remedy against the State in that regard. She relied on Article 3 (alone and in conjunction with Article 13), Article 8, Article 2 of Protocol No. 1 as well as these latter Articles taken in conjunction with Article 14 of the Convention. I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
98. The Government submitted that the Court should reconsider its admissibility decision arguing that the applicant had failed to exhaust domestic remedies, that she was no longer a victim of a violation of the Convention, that her application was out of time and, finally, that her complaints were manifestly ill-founded. The applicant rejected these submissions relying, inter alia, on the Chamber’s unanimous admissibility decision. A. Submissions of the parties
1. The Government
99. The Government maintained, in the first place, that the applicant had failed to exhaust effective domestic remedies. They disagreed with the Chamber that she was entitled to choose remedies when the result was that her core complaint to this Court was precisely the claim abandoned before the domestic courts. Since she did not appeal to the Supreme Court the order of the High Court to the effect that she had not established a case in negligence (the “non-suit” order), the State was deprived of the opportunity to contest the negligence claims, with its evidence, in the proper domestic forum. As a result, much controversial material had been opened before this Court without the necessary domestic court analysis. The Government were not suggesting that, having unsuccessfully pursued one remedy, she should have begun another but rather that she should not have abandoned at the High Court stage an appeal concerning her core complaint to this Court. 100. Secondly, if that non-suit order of the High Court that she had not established a case in negligence was clearly not appealable, the application should be rejected as out of time as it was not introduced within six months of that order which was dated 9 March 2004. 101. Thirdly, the Government maintained that the applicant could no longer claim to be a victim given the awards of damages to her by the CICT and by the High Court (Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000‑I; Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000‑XI and Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002‑I). The CICT scheme was a reasonable and independent assessment of compensation for criminal damage which was drawn from public funds. If the applicant considered the CICT award inadequate, she should have taken an action in judicial review. That the CICT award was lower than that of the High Court did not mean it was inadequate: the higher award could be explained by additional information before the civil courts or by the differing elements comprising the respective awards. The interaction between the CICT award, the award against LH and any award by this Court was illustrated by the requirement to repay the CICT award if damages were received from the other two sources. 102. The Government also argued, albeit in the context of Article 13 of the Convention, that an effective remedy did not necessarily mean one in which the State was a defendant. They underlined that the Court did not find a breach of Article 13 in Costello-Roberts v. the United Kingdom (25 March 1993, § 27, Series A no. 247‑C) as the applicant was able to sue the private school or its authorities for assault. They also relied on the sufficiency of the negligence action in Calvelli and Ciglio v. Italy (cited above). They considered Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001‑V) to be distinguishable: that respondent Government had conceded that a negligence action was the only effective remedy but that that action did not lie against local authorities. 103. Finally, the Government maintained that the application was manifestly ill-founded. 2. The applicant
104. The applicant considered she had exhausted all effective domestic remedies. Given the nature of her complaints, only a remedy which determined State liability and offered adequate compensation could be considered effective. As the Chamber found, she was entitled to choose the most feasible remedy against the State (vicarious liability for acts of LH) and she was not required to exhaust other remedies once that remedy was ultimately unsuccessful. She was then entitled to introduce her application within six months of the Supreme Court judgment and not, as the Government argued, within six-months of the High Court non-suit order. 105. The applicant maintained that she retained her victim status since there had been no recognition of State liability or adequate compensation from the State. She rejected the relevance of the case-law on which the Government relied: in the above-cited Caraher case, the applicant was no longer a victim because his civil action was against the State and Calvelli and Ciglio was a medical negligence case. 106. As to the CICT award, she pointed out that the Court had already found the similar system in the United Kingdom to be an inadequate means of establishing State responsibility: the CICT did not concern, let alone acknowledge, any liability of the State and, consistently, the award was ex gratia. She argued that the award was inadequate as demonstrated by the difference between it and the significantly greater civil award against LH (the core non-pecuniary award against LH was EUR 200,000 as well as EUR 100,000 in aggravated and exemplary damages and the non-pecuniary element of the CICT award was EUR 27,000). Judicial review of the CICT award stood no chance of success in which case she risked a heavy costs’ order against her: there had been approximately 5 such cases since 1982 and the scope of judicial review was too narrow to accommodate a simple disagreement over the amount of the award. 107. The case against LH, the applicant submitted, did not concern State liability and, while she had done all she could to recover the award against him, she had received only a small part of it. She had registered a judgment mortgage on his interest in the family home but, since the house was registered land, the registration of a judgment mortgage did not (at the time) sever the joint tenancy or therefore allow for the sale of the house. Moreover, where the property was a family home and the judgment mortgage related to one spouse only, an order for sale would not be given. In any event, it was not a satisfactory remedy if it required her to deprive an innocent third party of a family home. B. The Court’s assessment
108. It is recalled that, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it finds that it should have been declared inadmissible for one of the reasons outlined in the first three paragraphs of Article 35 of the Convention (for example, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003‑III. 109. As regards the applicant’s exhaustion of domestic remedies, the Chamber retained the following relevant principle:
“... if there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (O’Reilly v. Ireland, no. 24196/94, Commission decision of 22 January 1996; T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005; and, more recently, Shkalla v. Albania, no. 26866/05, § 61, 10 May 2011; as well as Leja v. Latvia, no. 71072/01, § 46, 14 June 2011).”
110. The Chamber noted that the applicant’s core grievances concerned the State’s responsibility for the sexual assaults by LH as well as the availability of a civil remedy against the State in that respect. The Chamber therefore considered her pursuit of a claim alleging the State’s vicarious liability for LH to be a reasonable choice. It could not be said that the outcome of that action was clearly foreseeable since her action was a lead case in the domestic courts and since it ended with a majority judgment of the Supreme Court. If successful, that action could have addressed her essential grievances through a finding of State responsibility and an award of damages against the State. While the basis of State responsibility invoked domestically was different to that pursued before the Court, the Court’s case-law made it clear that the applicant had the right, consistently with Article 35, to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when the route reasonably chosen proved unsuccessful, to exhaust another remedy with essentially the same objective. 111. The Grand Chamber does not consider that the Government’s observations undermine the Chamber’s findings. Just as the established case-law of this Court entitles an applicant to choose one feasible domestic remedy over another, the applicant was entitled to devote resources to pursue one feasible appeal (vicarious liability) over another (a claim in negligence and/or a constitutional tort). The Grand Chamber re-affirms therefore the findings of the Chamber that the applicant fulfilled the exhaustion requirements of Article 35 of the Convention. 112. The Court has examined below, in the context of Article 13, whether the remedies not exhausted by the applicant could be considered, nevertheless, to be effective (paragraphs 179 and 183-186). 113. It also follows that the applicant was entitled to introduce the present application within six months of the final decision in the proceedings chosen, namely within six months of the Supreme Court judgment on vicarious liability of 19 December 2008. The application cannot therefore be dismissed as having been introduced outside of the time-limit fixed by Article 35 of the Convention. 114. As to the applicant’s victim status, the Chamber was of the view that this preliminary objection had to be joined to the merits of the complaint under Article 13 of the Convention. The Grand Chamber considers that it must examine this issue as a preliminary objection. However, even assuming that a damages award in her favour could take away the applicant’s victim status as the Government argued based on Caraher v. the United Kingdom (and related jurisprudence), the Grand Chamber considers that she can still claim to be a victim of a violation of the Convention as regards her complaints about the State’s failure to protect her or to provide her with an effective remedy in that respect. 115. The Court recalls that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (for example, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Where rights of such fundamental importance as those protected under Article 3 are at stake and where an alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 requires that there should be available to victims a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention and, furthermore, that compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (Z and Others v. the United Kingdom, cited above, § 109). An applicant’s victim status may also depend on the level of compensation awarded at domestic level, having regard to the facts about which the applicant complains before the Court (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 115 and 118, ECHR 2010). 116. As to the case-law relied upon by the Government to argue that a remedy addressing State liability was not a pre-requisite to effectiveness, the Court notes as follows. The present case is substantively different from Costello-Roberts: the applicant in the latter case essentially challenged the application by a teacher of the law (allowing corporal punishment) whereas the present applicant challenged the State’s failure to legislate to provide an adequate legal framework of protection. Calvelli and Ciglio concerned medical negligence so that a civil negligence action against doctors (and, potentially, disciplinary proceedings) was considered adequate for the purposes of the procedural aspect of Article 2 of the Convention. That the Government made concessions about domestic law in Z and Others does not change the Convention principles stated therein to the effect that, in a case such as the present, a remedy against the State was required. 117. However, the applicant has neither obtained acknowledgement of the Convention breach alleged nor adequate redress. 118. In the first place, neither LH’s criminal conviction nor the damages award against him concerned State responsibility. The CICT award, on which the Government relied, did indeed come from State funds and constituted compensation by the State to the applicant for criminal damage inflicted on her by a third party. However, it was made on an ex gratia basis and did not concern in any way, let alone acknowledge, any liability of the State. Consistently with this fact, the State is never a party to CICT proceedings (Z and Others v. the United Kingdom, cited above, § 109; E. and Others v. the United Kingdom, no. 33218/96, § 112, 26 November 2002; and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003). 119. Secondly, while the High Court awarded over EUR 300,000 to the applicant she has only been able to recover from LH approximately 10%, of that award, even following enforcement proceedings. Given LH’s age, the level of monthly payments fixed and the fact that LH’s main asset is a family home, the prospects of recovering the rest of that award remain minimal. While the CICT award (EUR 54,000) included a non-pecuniary element (EUR 27,000), that was very substantially lower than the non-pecuniary damage assessed by the High Court at EUR 200,000 (for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 214-215, ECHR 2006‑V). There being little evidence that the applicant’s CICT non-pecuniary award was unusual by CICT standards, it has not been demonstrated that a challenge, whether before the CICT panel or on judicial review, stood any chance of success.
120.

Article of the Convention at issue: Article 3
Outcome: violation