ALLEN v. IRELAND

FIFTH SECTION

DECISION

Application no. 37053/18
John ALLEN
against Ireland

The European Court of Human Rights (Fifth Section), sitting on 19 November 2019 as a Chamber composed of:

Angelika Nußberger, President,
Gabriele Kucsko-Stadlmayer,
Ganna Yudkivska,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 1 August 2018,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr John Allen, is an Irish national, who was born in 1962 and lives in Cork. He was represented before the Court by Mr K. Rolls, a lawyer practising in Dublin.The circumstances of the case

2.  The facts of the case, as submitted by the applicant, may be summarised as follows:Factual Background

3.  Between 1969 and 1980, the applicant attended North Monastery C.B.S. primary and secondary schools in Cork managed by the Congregation of Christian Brothers. He was also a member of a Scout Troup.

(a)   North Monastery Primary school

4.  During the school year 1971/1972, when the applicant was nine years old, he was sexually assaulted by a teacher, Brother G.C. The applicant states that, during that period, due to a change in his behaviour, including soiling himself, his mother attended the school, met with the Principal, Brother H. and enquired as to whether the applicant was being bullied. She reported that she had complained to the school in a statement she later gave to the applicant’s solicitor in January 2006.

(b)   North Monastery Secondary school

5.  The applicant alleges that when he was twelve or thirteen years old, he was sexually abused by another teacher, Brother J.G., while attending secondary school run by the same religious order.

(c)   8th Cork Scout Troup

6.  The applicant alleges that, between the ages of seven and thirteen, he was sexually abused by a Boy Scouts Troop leader, N.S.The criminal proceedings

7.  In December 2000 and April 2003, the applicant gave statements to the Garda Síochána (the Irish police) alleging he had been sexually abused at the three institutions identified.

8.  In November 2003, the police approached G.C. who admitted to having sexually abused the applicant.

9.  In November 2004, at Cork Circuit Court, G.C. was summarily convicted of one sample count of indecent assault against the applicant and received a sentence of six months suspended imprisonment. He was fined 500 euros (EUR); bound over to keep the peace for two years and ordered to follow the directions of an institute for the treatment of sex offenders. His name was placed on the Sex Offenders Register.

10.  According to the applicant, following an allegation by another victim, G.C. was later convicted of a separate count of child sex abuse and imprisoned.

11.  J.G., who worked at North Monastery Secondary school, denied the applicant’s allegations and has not been prosecuted in respect of the offence alleged.

12.  N.S., who was the Boy Scouts Troop leader, denied the applicant’s allegations against him; however, the applicant stated that N.S. has appeared in court on separate allegations of child abuse. He has not been prosecuted in respect of the offence alleged by the applicant.

13.  In July 2007, the applicant made a complaint to the Garda Síochána Ombudsman Commission (“GSOC”) regarding, inter alia, failure by the police to investigate allegations of sexual abuse made by him.

14.  Following an investigation, on 25 November 2008 the GSOC determined that no breach of the Disciplinary Regulations was committed by any member of the police whose conduct was under investigation. It was determined that there was no evidence to support the applicant’s allegations, and that no further action ought to be taken in relation to his complaint.The civil proceedings

15.  In December 2003, the applicant issued civil proceedings in the High Court against G.C., J.G., N.S., representatives of the Congregation of Christian Brothers, the Minister for Education and Science, Ireland and the Attorney General, seeking damages for severe personal injuries, loss and other damage by reason of assault and/or battery perpetrated upon him, and/or the negligence, and/or breach of his constitutional rights, by the defendants, including by way of vicarious liability (see Allen v. Minister for Education and Science & Ors, record no. 2003/13968P).

16.  On 19 December 2008, prior to the determination of the applicant’s civil claim, the Supreme Court delivered its judgment in the case of O’Keeffe v. Hickey & Ors [2008] IESC 72 determining that the State could not be held vicariously liable for acts of abuse carried out by a teacher in a national school. The question of vicarious liability had been the only one appealed to the Supreme Court, the appellant’s claim in negligence having been non-suited at High Court level and not having been pursued by the appellant before the Supreme Court. On 21 January 2009, the Chief State Solicitor’s Office (“the CSSO”), which represented the State defendants in the civil proceedings, wrote to the applicant drawing his attention to the O’Keeffe v. Hickey & Ors judgment and inviting him to discontinue his proceedings against its clients. The CSSO further offered not to pursue its costs if the applicant’s proceedings against its client were discontinued. On 2 June 2010, the applicant served a notice of discontinuance of his proceedings against the State defendants.

17.  On 28 January 2014, this Court delivered its judgment in the case of O’Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 (extracts), (see paragraph 51 below) finding that the respondent State had violated the substantive limb of Article 3 of the Convention by failing in its positive obligation to protect the applicant in that case against sexual abuse suffered while she was a schoolchild. Further, in violation of Article 13, combined with Article 3 of the Convention, the Court found that it had not been shown that any of the domestic remedies were effective in addressing the applicant’s civil complaint concerning the State’s failure to protect her from abuse (see §§ 118, 183‑186).

18.  On 6 November 2015, the applicant issued a motion seeking to set aside the notice of discontinuance previously served on the State defendants. By a judgment dated 26 May 2016, that application was refused by the High Court which held that, in circumstances where the decision to serve the notice of discontinuance was “conscious and advised” and there was no fundamental mistake as to the substance of the law, it was bound to follow a previous decision of the Supreme Court in Smyth v. Tunney [2009] 1 IR 322 and refuse the applicant’s application.

19.  By judgment dated 21 July 2017, the Court of Appeal held that the High Court was correct in holding that the notice of discontinuance served by the applicant should not be set aside since it reflected a conscious and advised decision, taken after legal advice, and in relation to the State’s offer on costs. However, the Court of Appeal recognised that such notices could, in certain circumstances, be set aside. Before the Court of Appeal, the applicant had claimed that he acted under duress from the CSSO in serving the notice of discontinuance. Recognising the applicant’s “undoubtedly vulnerable position” and the “undoubted suffering” which had occurred if the facts alleged had happened, the Court of Appeal rejected the claim of duress. It was, it held, for each plaintiff to decide whether he or she wished to pursue their claim. The Court of Appeal emphasised, however, that Ms O’Keeffe’s appeal to the Supreme Court had only related to the dismissal of the vicarious liability claim and that claims in negligence and for breaches of constitutional rights had never been before the Supreme Court (see Murray & Ors v. Minister for Education and Science & Ors [2017] IECA 216).

20.  By a determination dated 5 February 2018, the applicant was refused leave to appeal to the Supreme Court having failed to meet the constitutional criteria for appeal to that Court in circumstances where the Supreme Court determined that the Court of Appeal decided the appeal before it in accordance with well-established principles and, accordingly, no point of general public importance arose on the issue in the case and it was not necessary for the Supreme Court to clarify the law concerned.Proceedings under the ex-gratia compensation scheme

(a)   Initial claim

21.  In November 2016, the applicant applied to the ex-gratia compensation scheme (“the Scheme”) established by the Irish authorities following this Court’s judgment in O’Keeffe (cited above, see also paragraph 27 below). On 20 November 2016, the State Claims Agency (“SCA”), which administers the Scheme, informed the applicant that it could not consider his application at that time as his claim was still before the courts; however, the applicant states that the SCA wrote to the Department of Education and Skills seeking information with a view to establishing whether a prior complaint of abuse against the people who abused him had been made (see paragraphs 28 and 31 below for the relevance of this prior complaint requirement).

22.  On 8 February 2018, once the applicant’s leave to appeal to the Supreme Court had been dismissed (see paragraph 20 above), he formally applied to the SCA again. On 13 February 2018, the SCA wrote to the applicant noting that his civil claim was at an end and stating that it was making enquiries regarding a possible prior complaint in respect of G.C. and/or J.G. Following a request for an update, the SCA wrote to the applicant on 26 March 2018 informing him that the solicitors representing the Congregation of Christian Brothers had written to it indicating that they would not co-operate with the enquiries being made regarding a possible prior complaint. It further indicated that it was awaiting a response from the Department of Education and Skills regarding a request for the same information.

23.  Following further queries raised by the applicant, on 28 March 2018 the SCA informed him that it had no basis on which to compel the Congregation of Christian Brothers to provide the information sought or to seek the High Court’s assistance in that regard. It also indicated that it was still awaiting a reply from the Department of Education and Skills. On 3 April 2018 and 30 April 2018, following correspondence from the applicant, the SCA indicated that it continued to await a reply from the Department of Education and Skills. On 21 June 2018, the SCA wrote to the applicant informing him that it understood that the Department of Education would shortly be in a position to provide it with the requested information.

24.  At the time of examination by the Court, no decision had been made in respect of the applicant’s claim under the Scheme.

(b)   Application to the Independent Assessor

25.  On 2 January 2018, the applicant applied to the Independent Assessor appointed to review the operation of the Scheme (see paragraph 39 below). According to the information available to the Court, he did so before any decision had been taken by the SCA on his compensation claim. The applicant requested an oral hearing and a decision in respect of his application. At the time of examination by the Court, the Independent Assessor had delivered a general decision on the assessment of applications to the Minister (see paragraph 39 below); however, no information regarding the applicant’s application to the Independent Assessor was provided to the Court and it will be presumed that it is still pending.The measures taken by Ireland to execute the judgment of the Court in O’Keeffe v. Ireland [GC]Introduction

26.  The Court’s judgment in O’Keeffe became final on 28 January 2014. In accordance with their obligations under Article 46 of the Convention to prevent similar violations of Article 13, taken in conjunction with Article 3, of the Convention occurring (see the recapitulation of the principles in Ilgar Mammadov v. Azerbaijan [GC], no. 15172/13, §§ 150-153, 29 May 2019) the respondent State submitted a series of Action Plans to the Committee of Ministers of the Council of Europe setting out the general measures they chose to adopt to execute the judgment and updating the Committee of Ministers on the progress made in adopting those measures.General measures proposed

27.  A non-statutory ex-gratia compensation scheme (“the Scheme”) was instituted by the Government as part of the general measures that Ireland is implementing in response to the Court’s judgment in O’Keeffe (cited above). In July 2015, the Government agreed that it would respond to those who instituted legal proceedings in relation to school child sexual abuse but had discontinued their cases after the Supreme Court decision in O’Keeffe by offering ex gratia payments.

28.  Compensation payments would be offered in cases that were not statute barred prior to their discontinuance, and where the applicant could demonstrate that their circumstances involved sexual abuse of a schoolchild by a primary or post-primary school employee in respect of whom there was a prior complaint of sexual abuse to a school authority (including previous employers) prior to the issue of the Department of Education guidelines to primary and post-primary schools in 1991 and 1992 respectively (see the three Action Plans submitted by Ireland to the Committee of Ministers between March 2015-March 2016 DH-DD(2015)138, DH-DD(2015)794, DH-DD(2015)795, DH-DD(2015) 1136 and DH-DD(2016)123).

29.  Under the measures proposed, applicants to the Scheme could appeal to an Independent Assessor regarding their complaint (see paragraph 39 below).

30.  Where the SCA or Independent Assessor is satisfied that the above criteria are met, the Department of Education and Skills is to offer an ex‑gratia payment up to a maximum of EUR 84,000 (eighty-four thousand euros) plus a specified amount for costs to the complainant. This figure was decided because it reflected the amount the applicant in O’Keeffe received from the respondent State, including the award from the CICT, and the amount the ECtHR decided the respondent State should pay to her.

(a)   The Committee of Ministers’ assessment of the measures

31.  At its 1259th meeting (June 2016), the Committee of Ministers of the Council of Europe examined the measures proposed by the Irish authorities. It was advised by its Secretariat as follows (see H46-15 O’Keeffe):

“...

In response to the Court’s judgment, all litigation against the State concerning historic child sex abuse is being examined by a specialist agency with a view to making settlement offers, where appropriate, in the light of the Court’s judgment. According to the authorities, in order to claim compensation under the scheme an individual should demonstrate the following:

-  that he or she was sexually abused as a school child by a teacher or other school employee;

-  that a prior complaint of sexual abuse had been made to any person in authority in a school about the alleged abuser;

-  the complaint could have been made on an informal basis and by anyone (the claimant, another school child, or any other person;

-  that the complaint was not acted upon at the time.

Civil society representatives have raised concerns that this approach interprets the judgment too narrowly and that compensation should be offered to any individual who was sexually abused in an Irish school. Nonetheless, it appears legitimate for the Irish authorities to impose some criteria to be met for individuals to qualify for compensation. Moreover, the criterion of a prior complaint of sexual abuse to have been made and not acted upon appears to have a reasonable link to the violations found in this case. In that connection, it may be noted that the Court specifically criticised the State for having inadequate mechanisms of detection and reporting of abuse and, as a result, for not responding to prior complaints of abuse.

The Court underlined that had adequate action been taken in the present case against the teacher, LH, in response to prior complaints made about him by another pupil two years earlier, the abuse of the applicant could have been avoided (see §§ 166-168).

However, it should also be underlined the claims are of a sensitive nature; the claimants were minors at the time the abuse may have occurred; and the authorities must be considered to have been aware of the sexual abuse of children by adults at the time through, inter alia, its prosecution of such crimes at a significant rate. It is therefore extremely important that the State Claims Agency makes a holistic analysis of each case and adopts a flexible approach to the evidence required, in particular in relation to the existence of a prior complaint. In this connection, it is positive that the authorities’ approach to compensation claims has evolved since the judgment became final. In December 2014 the State Claims Agency was only authorised to offer settlement to those cases that were pending before the domestic courts at the time of the Court’s judgment. [emphasis added]

In July 2015, the authorities opened out the scheme also to offer settlements or ex gratia payments to those cases which were withdrawn pending the Court’s judgment as well as to historic abuse claims newly submitted after the Court’s judgment. It is also encouraging that it is making such settlement offers in relation to abuse which occurred in both primary and secondary school settings, even though the Court’s judgment was limited to primary schools.

In sum, the limits imposed on the settlement scheme appear acceptable as long as the authorities ensure that the flexible and holistic approach of the State Claims Agency is maintained. In addition, the Irish authorities have confirmed that, should an individual be dissatisfied with the assessment by the State Claims Agency, he or she is free to lodge a complaint before the domestic courts. This domestic judicial supervision of the settlement scheme should therefore provide an effective, domestic safeguard and avoid repetitive cases being brought before the Court ...”

32.  The Committee adopted its decision:

“The Deputies ...

4.  noted with satisfaction that the State Claims’ Agency is making settlement offers to those whose claims fall within the terms of the judgment; urged the authorities to ensure that it continues to take a holistic and flexible approach to all such claims and concludes its work without delay; ...”

33.  The Court notes that three NGOs have made submissions to the Committee of Ministers under Rule 9(2) of the Rules of that Committee for the supervision of the execution of the judgment in O’Keeffe. One of those submissions considered that evidence of a prior complaint may be treated as a consideration which informs the decision-making process but not as a condition precedent to eligibility given the terms of the Court’s judgment.

(b)   Subsequent developments in the execution process

34.  After the Committee of Ministers adopted its decision in June 2016, the Irish authorities submitted a further five updates to the Action Plan. In the June 2019 update (see DH-DD(2019)392), they explained that there is no strict interpretation of what constitutes a “prior complaint”.

35.  The Action Plan stated:

“... the State must be satisfied on the balance of probabilities that there was a prior complaint but that it does not insist on a strict evidential standard in assessing material submitted by an applicant. It stated that it undertakes a holistic analysis and adopts a flexible approach.”

36.  According to the Action Plan, a prior complaint includes not only complaints made to teachers but also to any persons in authority in a primary or post-primary school. The Government further indicated that there are no time limits to the submitting of an application and if new evidence subsequently comes to light, even where an application had initially been declined, a further application can be submitted at any stage.

37.  With regard to historical cases which were discontinued (such as in the present application), the Irish authorities stated that ex gratia settlement offers will be made where the cases come within the terms of the judgment in O’Keeffe, cited above, and are not statute barred. As of June 2019, the SCA, which administers the Scheme, had received 50 such applications, of which 44 were declined and six are pending. The applicants in those cases were advised that they could apply for an independent assessment of their claims (see paragraph 39 below).

38.  In relation to each case, the SCA requests the Department of Education and Skills to undertake a fresh search of its records for any evidence of a prior complaint in respect of the alleged abuser. It also writes to the solicitor representing the relevant religious congregation which is the manager and/or patron of the school and/or the employer of the abuser.

(i)  Independent Assessor

39.  As part of the implementation of the judgment of this Court in O’Keeffe, in November 2017 a retired Judge of the High Court was appointed to act as an independent assessor in relation to cases where an applicant to the Scheme has had his/her claim declined by the SCA. An individual who has applied for an ex-gratia payment but has been declined by the SCA may seek a review by the Independent Assessor who can confirm the SCA decision, replace the decision with a new decision he considers appropriate, or refer the matter back to the SCA for reconsideration in accordance with such directions as he considers appropriate.

40.  By February 2018, nineteen applications for review of the decision of the SCA were received by the Independent Assessor in which the major issue for almost all of the applicants was the “prior complaint” condition for eligibility to receive a payment from the Scheme. As a result, the Independent Assessor decided to consider whether this condition was consistent with a correct implementation of the O’Keeffe judgment. In March 2018, he invited the Department of Education and Skills to make a submission on “whether the imposition of the condition which required that there had to be evidence of a prior complaint of child sexual abuse on the part of the employee in question to the school authority (or a school authority in which the employee has previously worked), to establish eligibility for a payment under the ex gratia scheme, is consistent with and a correct implementation of the judgment of the European Court of Human Rights in the case of Louise O’Keeffe v. Ireland”.

41.  Following a consultation process concerning the evidence required by the SCA, the Independent Assessor delivered a general decision on the assessment of applications to the Minister for Education and Skills on 5 July 2019. He observed that this Court in O’Keeffe had found that, regardless of the unique system of management of National Schools whereby the State ceded the management role to denominational entities, the State could not and did not absolve itself of its inherent obligation of government to take reasonably available measures to protect children in National Schools from the risk of child sexual abuse. He stated:

“(a)t a minimum this obligation required the State to have in place effective mechanisms of detecting and reporting incidents of child sexual abuse in National Schools by and to a State controlled body.... The failure on the part of the State, which was unequivocally identified by the Court as constituting a breach of Article 3 of the Convention was the systems failure in not having in place before 1973, at a minimum, effective mechanisms for the detection and reporting of child sexual abuse in National Schools by and to a State controlled body (§§ 35-36)... it is crystal clear, that the ECtHR did not make any finding of a breach of Art.3 based on the fact that there was a failure to have responded to the prior complaints against LH. In fact the Court specifically exonerated the State from any liability in this regard, holding that the State neither knew nor ought to have known of these complaints until 1995 and there was no operational failure with regard to the manner the State dealt with the complaints thereafter (§ 39)... I am quite satisfied that the judgment of the ECtHR establishes a liability on the part of the State for a breach of Art.3 based solely on the failure to have in place, at a minimum effective mechanisms for the detection and reporting by and to a State controlled body, of child sexual abuse in National Schools (§ 40).

...One must bear in mind that the core finding of the ECtHR was that there was no mechanism for the reporting of child sexual abuse in National Schools. Consequently there was no systematic recording of such complaints by the State. Thus the State does not have records of complaints which may have been made to the denominational authorities in the schools. Complaints made to Manager or Patrons or others in positions of responsibility in the National Schools are very unlikely to have been properly recorded and with the passage of time have been lost in the fog of receding history and are now not recoverable and available to the applicants. In so far as records of these complaints still exist, they are in the possession of the denomination institutions which managed the Schools and are not available to the State. Neither the SCA nor the Independent Assessor has the legal power in the context of the ex-gratia scheme to compel productions of such records.” (§ 43)

42.  In the view of the Independent Assessor, the “prior complaint” condition for entry into the Scheme was inconsistent with this Court’s judgment in O’Keeffe. He stated:

“(f)or the State to insist on such a pre-condition to eligibility involves an inherent inversion of logic and a fundamental unfairness to applicants... Insistence by the State on proof of a prior complaint against the same abuser, because of the virtual impossibility for applicants to meet this demand, is fundamentally unfair and ignores the fact that the State created, in breach of Art.3 of the Convention the very circumstances which now inhibit applicants from being in possession of knowledge or prior complaints... The inclusion of the “prior complaint” condition for eligibility for a payment from the ex-gratia scheme is inconsistent with the core reasoning of the judgment of the ECtHR in the Louise O’Keeffe case and, in effect, impedes the operation of the test set out in para.149 of that judgment to be satisfied by claimants in order to be compensated by the State for the breaches of their right under Art.3 of the Convention, to be protected by the State from ill-treatment in National Schools, in this instance child sexual abuse.” (See §§ 46-49 and 52)

43.  In his conclusions, the Independent Assessor stated that the State’s insistence on the “prior complaint” condition for eligibility risks a continuing breach of the right to an adequate remedy in domestic law of those victims of child sexual abuse in National Schools who discontinued litigation against the State. He added that the “prior complaint” condition was not, and could not lawfully have been, approved or endorsed by the Committee of Ministers of the Council of Europe as compatible with the judgment in O’Keeffe (See §§ 74-79).

44.  The Independent Assessor determined that, in thirteen of the nineteen applications before him, the applicants should be entitled to a payment from the Scheme in circumstances where the only ground on which payment had been declined was the failure to furnish evidence of a prior complaint. In respect of the remaining six applicants, the Independent Assessor determined that they had not fulfilled the first eligibility criterion, namely that they had proceedings against the State which had not been discontinued. In one case, there was an additional ground for exclusion from the Scheme as the application related to physical abuse rather than sexual abuse. He determined that those applicants may be dealt with more appropriately under the heading “New Litigation in relation to Historic Abuse Claims” as set out in the State’s Action Plan to the Committee of Ministers (see DH-DD(2019)392 pages 9-11). The Independent Assessor stated that, in five of the aforementioned six cases, the applicants would also have been affected by the “prior complaint” condition.

(ii)  Judicial review of the Scheme

45.  According to the Government’s June 2019 Action Plan (DH‑DD(2019)392), the High Court has granted leave to one person to issue judicial review proceedings challenging the delay on the part of the Department of Education and Skills to respond to the SCA’s request for information. That person also alleges that the Scheme, as currently operated, is incompatible with the Convention, particularly Articles 3, 8 and 13 thereof, by requiring a prior complaint in order to establish eligibility for compensation under the Scheme.

(iii)  Reaction of the respondent State to the general decision of the Independent Assessor

46.  Following the general decision of the Independent Assessor, the Minister for Education and Skills made the following statement in Dáil Éireann on 10 July 2019:

“The judgment of the European Court of Human Rights is complex and lengthy and runs to some 80 pages. What is clear is that some people who were abused in day schools discontinued cases against the State before the judgment in respect of Ms O’Keeffe in the European Court of Human Rights.

Some of those cases involved the State being joined in actions that survivors had taken against school authorities including religious congregations. The ex gratia scheme was established to provide a mechanism to address the situation of these people. The criteria of the scheme reflected the State’s interpretation of the European Court of Human Rights, ECHR, judgment, including the criterion that there must have been a prior complaint of abuse to a school authority. I acknowledge as a matter of fact that this proved to be too difficult a hurdle for applicants to cross. Put simply, the scheme did not work. The result is that close to half of the people who applied to the ex gratia scheme subsequently applied to have their case reviewed by the independent assessor to the scheme, retired High Court judge Mr. Justice Iarfhlaith O’Neill. Mr. Justice O’Neill has ruled on those 19 applications. He has formed the view that the requirement for a survivor to secure evidence of a prior complaint is not consistent with the ECHR judgment. As a result, 13 people are entitled to a payment. This will be paid as a matter of priority.

In response to the assessor’s decision, the Taoiseach [Prime Minister] announced in the Dáil yesterday that the prior complaint criterion would be dispensed with and that the scheme would be reopened. My Department, in conjunction with the Office of the Attorney General, is examining the scheme in light of this. I met the Attorney General [...] yesterday to discuss the next steps in the process and I hope to be in a position to bring a memo to Cabinet next week outlining the Government’s response.”

(iv)  Latest Action Plan

47.  On 15 October 2019, the Government submitted an updated Action Plan to the Committee of Ministers (see DH-DD(2019)1159). Regarding the status of applications to the Scheme following the general decision of the Independent Assessor, it stated:

“5... The State is abiding by the determinations of the Assessor. In consequence, offers of payment have been made to those 13 applicants in respect of whom the Assessor has made a positive determination.

In addition, a further five applications to the Scheme which were not amenable to being determined or submitted for assessment in the timeframe applying to the Assessor’s deliberations have been disposed of on the same basis as those 13 cases which were determined positively by the Assessor. In consequence, of these five cases, a further three offers of payment have been made where the absence of a prior complaint was the only ground for their being declined by the SCA. No offer was made in respect of the other two cases, as those cases did not fulfil the eligibility criterion of the Scheme in relation to discontinued litigation.

Therefore, a total of 16 offers of payment have been made. To date, seven applicants have accepted and received a payment from the Scheme. Further payments will be made upon acceptance of the remaining offers.”Relevant domestic law and practice

48.  Order 26, rule 1 of the Rules of the Superior Courts 1986 provides that a plaintiff may, at any time before receipt of the defendant’s defence or, after the receipt thereof but before taking any other proceeding in the action (save for any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part(s) of his alleged cause of complaint. The plaintiff shall pay such defendant’s costs of the action.

49.  In Smyth v. Tunney [2009] 1 IR 322, the Supreme Court held that, if an inherent jurisdiction to set aside a notice of discontinuance issued in accordance with Order 26, rule 1 existed, such inherent jurisdiction should not be used in circumstances where (i) the decision to serve the notice of discontinuance was a conscious and advised one, and (ii) the withdrawal of the notice of discontinuance would likely deprive a defendant of the defence of the Statute of Limitations. In Murray & Ors v. Minister for Education and Science & Ors [2017] IECA 216 (a case in which the applicant was a party, see paragraph 18 above), the Court of Appeal confirmed that the High Court does have jurisdiction to set aside or permit a plaintiff to withdraw a notice of discontinuance filed under Order 26 and confirmed that the correct test for doing so is that set out in Smyth v. Tunney.

COMPLAINTS

50.  The applicant complained under Article 3 of the Convention about the failure of the State to take positive measures to protect him from ill‑treatment at the hands of a private individual as well as the failure to adequately investigate allegations of abuse by G.C., J.G. and N.S. due to lengthy delay. In particular, he complained under Article 3, in conjunction with Article 13, of the Convention about the failure of the State to afford him an effective remedy for a breach of his Article 3 rights, by virtue of the rejection of all actions taken before the national courts, coupled with the excessively narrow ex-gratia redress scheme established as part of the implementation of the judgment in O’Keeffe. He alleged, in essence, that he had been excluded from the said scheme.

THE LAWPreliminary considerations

51.  Before examining the applicant’s complaints, the Court considers it necessary to recall its findings in O’Keeffe.

52.  Firstly, the Court found that the respondent State had failed to fulfil its positive obligation and put appropriate mechanisms in place to protect the applicant in the case, a National School pupil, from the sexual abuse to which she had been subjected and that this constituted a violation of Article 3 of the Convention (O’Keeffe, cited above, § 169). In reaching that conclusion, the Court reasoned as follows in §§ 152, 162, 165 and 168 of its judgment:

“152. ... the question for current purposes is therefore whether the State’s framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse, of which risk it could be said that the authorities had, or ought to have had, knowledge in 1973.

162.... when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware, given its inherent obligation to protect children in this context, of potential risks to their safety if there was no appropriate framework of protection. This risk should have been addressed through the adoption of commensurate measures and safeguards. Those should, at a minimum, have included effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body, such procedures being fundamental to the enforcement of the criminal laws, to the prevention of such ill-treatment and, more generally therefore, to the fulfilment of the positive protective obligation of the State ...

165.  The Court is therefore of the view that the mechanisms on which the Government relied did not provide any effective protective connection between the State authorities and primary-school children and/or their parents and, indeed, this was consistent with the particular allocation of responsibilities in the national-school model.

...

168. ... The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary-education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (national schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational managers ...”

53.  Secondly, the Court found no violation of the procedural obligations of the State under Article 3 since, once the complaint about historic sexual abuse was made to the police in 1995, the investigation, conviction and imprisonment of the perpetrator quickly followed. (ibid., § 174).

54.  Finally, the Court found a violation of Article 13 of the Convention in conjunction with Article 3 as it had not been demonstrated that, at the relevant time, the applicant had had an effective domestic remedy available to her (ibid., § 187). It stated that it was not persuaded that any of the proposed remedies against the State had been shown by the Government to be effective (see §§ 118 and 183-186). Neither the criminal conviction of the perpetrator of the abuse, the damages against him in tort, nor the ex‑gratia compensation which had been awarded by the CICT established State responsibility (see O’Keeffe, cited above, § 118). In coming to this conclusion, the Court noted that the success of a claim against the State in direct negligence, which had been the subject of an obiter dictum by one of the members of the Supreme Court but which had not, it should be added, formed part of the applicant’s case at that level of jurisdiction, appeared to be unlikely (ibid., § 185).General principles in relation to the six-month rule, the rule on exhaustion and the execution of Court judgments

55.  The primary purpose of the six month rule under Article 35 § 1 is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 129, 19 December 2017).

56.  In addition, it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to national systems safeguarding human rights. The rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention is based on the assumption, reflected in Article 13 of the Convention, that there is an effective remedy available in respect of the alleged violation. Those who wish to invoke the supervisory jurisdiction of this Court are obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success; however, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69-77, 25 March 2014 and the cases cited therein).

57.  States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Vučković and Others, cited above, § 70 and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). The Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on cases which require the finding of basic facts, which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).

58.  The Court reiterates that the question of compliance by the High Contracting Parties with its judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 167, 22 May 2014).

59.  However, while the execution of Court judgments is supervised by the Committee of Ministers, the latter’s role in this sphere does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 47, 11 July 2017. It transpires from the Court’s case-law that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut. The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court’s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application (ibid, §§ 46-47 and the cases cited therein).Application of the relevant principles to the present case

60.  The applicant’s complaint under the substantive limb of Article 3 is almost identical to the first complaint raised by the applicant in O’Keeffe. Since that judgment was given, and in light of its obligations under Article 46 of the Convention, the respondent State has adopted general measures to comply with the judgment in O’Keeffe. To that end it has established an ex-gratia compensation scheme for persons who had instituted legal proceedings in relation to school child sexual abuse but who had discontinued their proceedings prior to the judgment in O’Keeffe v. Ireland. The applicant is a member of this distinct group (see paragraph 27 above). Given the nature and purpose of the Scheme, and the discrete category of persons to which it applies, the Court considers that this part of the applicant’s complaint is thus linked to the Court’s assessment under Article 3 in conjunction with Article 13 (see also O’Keeffe, cited above § 173 and paragraphs 63-78 below).

61.  With regard to the applicant’s complaint under the procedural limb of Article 3 of the Convention and the alleged failure of the police to adequately investigate allegations of abuse perpetrated by G.C., J.G, and N.S. due to lengthy delay, the Court observes that the applicant’s complaints to the police resulted in an investigation and ultimately the conviction of G.C. within a period of nineteen months from the applicant’s decision to pursue his complaint (see §§ 7 and 9 above). The applicant did not take any issue with the criminal proceedings against G.C. The Court thus finds that this part of the complaint is manifestly ill‑founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see also O’Keeffe, cited above, §§ 170-174).

62.  It is not clear from the applicant’s submissions what steps were taken by the police to investigate the applications against J.G. and N.S. nor why it was ultimately decided not to prosecute them (see paragraphs 11-12 above). The GSOC appears to have found that there was no evidence to support the applicant’s allegations (see paragraph 14 above). However, as the applicant’s complaint to the GSOC was determined in November 2008 and no appeal in relation to that finding was introduced, this part of the applicant’s complaint under the procedural limb of Article 3 must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention having been submitted more than six months after the last domestic decision.

63.  In responding to the applicant’s complaint under Article 13 in conjunction with Article 3, the Court will focus on his central argument that the Scheme is failing to operate as an effective remedy.

64.  The applicant complains, in particular, that he has been excluded from the Scheme specifically set up in response to the violations of the Convention established in O’Keeffe. The Court observes firstly that he does not contest the nature of the Scheme or the adequacy of the awards envisaged, which appear to be substantial (see paragraph 30 above). The core of his complaint is whether one of the conditions for an award of compensation for the category of victim to which he belongs is compatible with the Court’s judgment in O’Keeffe. Secondly, the Court recalls that the supervision procedure in respect of the execution of the judgment in O’Keeffe is still pending before the Committee of Ministers (see paragraphs 26-38 above). In accordance with the well-established case-law of the Court, and in harmony with Article 46 of the Convention, it is not the Court’s role to assess the adequacy of measures, be they general or individual, undertaken by Member States to comply with final judgments of this Court finding violations of the Convention (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 182, 15 November 2018, Moreira Ferreira v. Portugal (no. 2), cited above, §§ 46-47, and the cases cited therein).

65.  As indicated previously, however, Committee of Ministers’ role in this sphere does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the initial judgment (see Drėlingas v. Lithuania, no. 28859/16, § 108, 12 March 2019).

66.  Furthermore, the Court observes that in cases such as Moreira Ferreira, cited above, it was called on to examine the alleged inadequacy of individual measures adopted in relation to the application following the finding of a violation and not, as here, the alleged inadequacy of general measures adopted following such a finding and their application to a new applicant.

67.  However, an examination of the applicant’s case reveals that his complaint under Article 3 of the Convention in conjunction with Article 13 must be deemed inadmissible as being premature and on the ground that domestic remedies have not yet been exhausted within the meaning of Article 35 § 1.

68.  The applicant first applied to the Scheme in November, 2016. As his application to set aside the notice of discontinuance in the civil proceedings was still pending before the domestic courts, the SCA indicated that it could not then consider the application at that point. The Court considers that it was not unreasonable for the SCA to delay its consideration of the application in circumstances where the question whether a person seeking compensation under the Scheme was also involved in ongoing civil proceedings was a determinant factor in whether he was entitled to apply to the Scheme.

69.  The applicant submitted an appeal to the Independent Assessor in January 2018, in the absence of any determination of his first application by the SCA. This means that when the applicant lodged his application before this Court both his application for an ex-gratia payment and his appeal to the Independent Assessor were pending. No further information has been provided to the Court in the meantime suggesting any change in this regard.

70.  The Court notes that the applicant re-applied to the Scheme in February 2018 at which time it was indicated that the SCA was making enquiries in order to establish whether a prior complaint existed.

71.  The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001‑XII and Baumann v. France, no. 33592/96, § 47, 22 May 2001, unreported). In this case, the Court has considered the general decision of the Independent Assessor which was published after the application was lodged with the Court as well as the information provided in the latest Action Plan presented to the Committee of Ministers.

72.  The Court notes the general decision of the Independent Assessor in relation to the condition that those who apply for an ex-gratia payment must have introduced a prior complaint and his view that the inclusion of this condition was inconsistent with the core reasoning in the judgment in O’Keeffe (see paragraph 42 above). That core reasoning in relation to the complaint under the substantive limb of Article 3 of the Convention is reproduced in paragraph 52 above. The Court also takes note of his finding that 13 people who had applied to him, and whose applications for a payment from the Scheme were refused by the SCA on the sole ground that they failed to furnish evidence of a “prior complaint”, are each entitled to a payment from the Scheme; a finding supported by the subsequent declaration of the competent Minister.

73.  The crux of the applicant’s complaint, namely the requirement of a prior complaint as an eligibility criterion for payment under the Scheme, has never, according to the information available to the Court, been challenged by the applicant before a domestic court or yet determined by a domestic court in relation to others who have applied to the SCA but been unsuccessful on this ground (see paragraph 45 above).

74.  Like the Court of Appeal in its decision refusing to set aside the notice of discontinuance, the Court recognises the undoubted vulnerability of individuals like the applicant who, after several years, indeed decades, are seeking compensation in relation to historic sexual abuse. While the Court has frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Vučković and Others v. Serbia, cited above, § 76) it cannot simply ignore or abandon it. To do so would not be consonant with the Court’s role and with the principle of subsidiarity and would not be conducive to the effective exercise of the Court’s judicial mission and the rendering of quality judgments based on sufficient evidence and clear arguments.

75.  While the applicant has alleged that he has been excluded from the Scheme, in fact no determination of his claim has yet been made. In the light of the general decision of the Independent Assessor, the reaction of the respondent Government to that general decision, and the information provided in the latest Action Plan, it is not possible to conclude, at this stage, that the impugned eligibility requirement will be applied to the applicant or that, if unsuccessful on this ground, he will not be in a position to successfully appeal to the Independent Assessor or litigate his core complaint at domestic level. In the Action Plan submitted to the Committee of Ministers, the respondent Government has stated that persons who are unsuccessful in their applications to the SCA may challenge the decisions of the latter before the domestic courts and the existence of this possibility has not been contested by the applicant. It will be for those courts, in accordance with their Convention obligations, not least the requirement under Article 6 § 1 that decisions be rendered without unreasonable delay, to address if necessary the legal question at the heart of the applicant’s complaint.

76.  The applicant’s application to the Scheme was undetermined, and not obviously futile, at the time of examination by the Court. In the circumstances, the Court considers therefore that the applicant’s complaint under Article 3 in conjunction with Article 13 as regards the State’s failure to comply with its positive obligations is premature.

77.  The Court notes that, should the applicant be dissatisfied in the future with the progress or outcome of domestic procedures, it would be open to him to reintroduce an application (see similarly McCaughey and Others v. the United Kingdom, no. 43098/09, § 128, ECHR 2013).

78.  Accordingly, for the time being, this part of the applicant’s complaint must be rejected as being inadmissible on the ground that domestic remedies have not yet been exhausted pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously

Declares the application inadmissible.

Done in English and notified in writing on 12 December 2019.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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