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You are here: BAILII >> Databases >> European Court of Human Rights >> STUBBINGS AND OTHERS v. THE UNITED KINGDOM - 22083/93 22095/93 - Chamber Judgment [1996] ECHR 44 (22 October 1996) URL: https://www.bailii.org/eu/cases/ECHR/1996/44.html Cite as: (1997) 23 EHRR 213, 23 EHRR 213, [1997] Fam Law 241, 1 BHRC 316, [1997] 3 FCR 157, [1997] 1 FLR 105, (1996) 23 EHRR 213, [1996] ECHR 44 |
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COURT (CHAMBER)
CASE OF STUBBINGS
AND OTHERS
v.
THE UNITED KINGDOM
(Application no. 22083/93; 22095/93)
JUDGMENT
STRASBOURG
22 October 1996
In the case of Stubbings
and Others
v.
the United Kingdom[1],
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[2], as a Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr N. Valticos,
Mr I. Foighel,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Sir John Freeland,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 24 April and 24 September 1996,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
The Commission’s request and the application of the Government referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the application was to obtain a decision as to whether the facts of the cases disclosed a breach by the respondent State of its obligations under Articles 6, 8 and 14 of the Convention (art. 6, art. 8, art. 14).
There appeared before the Court:
(a) for the Government
Mr I. Christie, Foreign and Commonwealth Office, Agent,
Mr D. Anderson, Counsel,
Mr M. Collon, Lord Chancellor’s Department, Adviser;
(b) for the Commission
Mr N. Bratza, Delegate;
(c) for the applicants Ms Stubbings,
J.L. and J.P.
Mr K. Boyle, Counsel,
Mr T. Fisher, Solicitor;
(d) for the applicant D.S.
Mr M. Wynne-Jones, Counsel,
Mr P. Sykes, Solicitor.
The Court heard addresses by Mr Bratza, Mr Boyle, Mr Fisher, Mr Wynne-Jones and Mr Anderson.
AS TO THE FACTS
I. The circumstances of the case
(1) Ms Stubbings
In addition, she alleges that Stephen Webb
forced her to have
sexual
intercourse with him on two occasions in 1969 when she was twelve and he
was seventeen.
The limitation period for such actions was three years, either from the date on which the cause accrued or from the date on which the plaintiff first knew the injury in question was both significant and attributable to the defendants. Section 33 of the 1980 Act provided that the court could allow such an action to proceed even if commenced after the expiry of the three-year period where it would be equitable to do so (see paragraph 35 below).
The Court of Appeal, however, accepted Ms Stubbings’
argument
that although she had always remembered that she had been
abused
by Mr
Webb
and
Stephen, she did not realise that she had suffered sufficiently serious injury
as to justify bringing a claim until September 1984, when she came to
understand the causal link between the assaults and her mental health problems.
Furthermore, after considering the report of the Tucker Committee (see paragraph 31 below), he held that the words "breach of duty" in section 11 (1) of the 1980 Act did not embrace actions based on intentionally inflicted injuries, such as rape and indecent assault. Instead, these types of claim were subject to the six-year limitation period provided for in section 2 of the 1980 Act. This limit, which could not be disapplied by the court, started to run from the plaintiff’s eighteenth birthday (section 28: see paragraph 35 below). The claim was therefore out of time.
(2) Ms J.L.
She alleges that between 1968 and September 1979 she was
frequently abused
by her father, who took pornographic photographs of her and
subjected her to serious assaults of a
sexual
nature.
Finally, in October 1990, she asked her doctor for help and he
referred her to a psychologist. At this time, she allegedly gained insight into
the connection between the abuse
and her mental health problems for the first
time. Initially this worsened her condition, causing her to attempt suicide in
December 1990.
A medical report prepared in May 1991 for the purposes of the litigation described her as suffering from severe psychological damage, which manifested itself in an inability to trust others, constant mood swings, insomnia and anxiety. According to the report, she was likely to remain damaged for the rest of her life and would have an increased risk of developing a mental illness.
(3) Ms J.P.
Between the ages of five and seven she attended a state primary school in Highgate, London, but her parents withdrew her in 1966 because she had become depressed and withdrawn and was suffering from nightmares. It appeared that the Deputy Headmaster, a Mr P., had been removing her from lessons, purportedly to look after his two-year-old daughter.
She underwent a course of therapy which, in February 1989,
prompted her to experience a violent
recall of being subjected to
sexual
abuse
by Mr P. She subsequently recovered memories of other assaults by him,
including incidents of rape.
However, legal aid was withdrawn and the action was
discontinued following the decision of the House of Lords in Stubbings
v.
Webb
(see paragraph 15 above), because her claim had become time-barred in January
1982.
(4) Ms D.S.
Between 1968 and 1977 she was allegedly subjected to repeated
sexual
assaults by her father, including acts of rape.
She asserted that, as a result of the abuse,
she suffered from
feelings of despair, depression, fear and guilt and found it difficult to
sustain relationships.
II. Relevant domestic law and practice
(1) Background to the Limitation Act 1980
These recommendations were implemented in the Limitation Act 1939.
The Committee’s proposals were followed in the Law Reform (Limitation of Actions) Act 1954, except that, instead of the suggested extendible two-year bar, a fixed three-year period was applied to all "actions for damages for negligence, nuisance or breach of duty ... where the damages claimed ... consist of or include damages in respect of personal injury to any person". In cases where the plaintiff was under a legal disability, time would only start to run from the date the disability ceased: thus, in the case of a child, from the date he attained his majority (twenty-one at the time the Act was passed, and eighteen after 1 January 1970).
The Limitation Act 1963 was therefore passed, to enable the court to extend the time-limit in cases where the plaintiff could not reasonably have been expected to discover earlier the existence or cause of his injury. However, the provisions enacted proved to be over-complicated and difficult to operate.
"In the first place, it is intended to protect defendants
from being vexed
by stale claims relating to long-past incidents about which
their records may no longer be in existence and as to which their witnesses,
even if they are still available, may well have no accurate recollection. Secondly,
we apprehend that the law of limitation is designed to encourage plaintiffs not
to go to sleep on their rights, but to institute proceedings as soon as it is reasonably
possible for them to do so ... Thirdly, the law is intended to ensure that a
person may with confidence feel that after a given time he may treat as being
finally closed an incident which may have led to a claim against him ... But if
the law of limitation is principally designed for the benefit of defendants, it
would nevertheless be a mistake to lose sight of the interests of injured
persons. A plaintiff who has lost the right to claim damages before he can know
of the existence of that right must, in our
view,
inevitably feel that he has
suffered injustice."
In an attempt to balance these interests, the Committee recommended the retention of the three-year period for personal injury actions, but proposed that time should only start to run when the injured person knew, or could reasonably have ascertained, the nature of the injury and its attributability to an act or omission on the part of the defendant. Furthermore, the court should have the power to override the time bar at its discretion.
These proposals were enacted in the Limitation Act 1975, and were retained in the Limitation Act 1980, which was a consolidating statute.
(2) The Limitation Act 1980
"Actions founded on tort
2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.
...
Actions in respect of wrongs causing personal injuries or death
11. (1) This section applies to any action for damages for negligence,
nuisance or breach of duty (whether the duty exists by virtue
of a contract or
of provision made by or under a statute or independently of any contract or any
such provision) where the damages claimed by the plaintiff for the negligence,
nuisance or breach of duty consist of or include damages in respect of personal
injuries to the plaintiff or any other person.
(2) None of the time-limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
...
14. (1) In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire:
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
...
Extension or exclusion of ordinary time-limit: disability
28. (1) Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.
...
Discretionary exclusion of time-limit for actions in respect of personal injuries or death
33. (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which:
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
...
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to:
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 2;
(c) the conduct of the defendant after the cause of action accrued ...
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice which he may have received ...
38. ...
(2) For the purposes of this Act a person shall be treated as under a disability while he is an infant, or of unsound mind."
(3) The House of Lords’ decision in Stubbings
v.
Webb
(4) Possible changes to the law
(5) Criminal law sanctions
Private individuals may also institute criminal proceedings
(section 6 of the Prosecution of Offenders Act 1985). However, the DPP may take
over the conduct of these proceedings and then discontinue them if the evidence
is insufficient, if the proceedings would be contrary to the public interest or
for any other good reason (R. v.
Bow Street Stipendiary Magistrate, ex parte
South Coast Shipping Co. Ltd [1993] Queen’s Bench Reports, p. 650F-G).
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS MADE TO THE COURT
The applicants, for their part, asked the Court to uphold their complaints and to award them just satisfaction.
AS TO THE LAW
I. ALLEGED VIOLATION
OF ARTICLE 6 PARA. 1 OF THE
CONVENTION TAKEN ALONE (art. 6-1)
"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ..."
The Government and the Commission were both of the opinion that
there had been no violation
of this provision (art. 6-1) taken alone.
Whilst the applicants accepted the validity
of limitation
periods in general, they asserted that the inflexible six-year period applied
in their cases could not be said to pursue a legitimate aim or be proportionate
to any such aim in
view
of the fact that, prior to the House of Lords’ decision
in
Stubbings
v.
Webb
(see paragraph 15 above), a period of three years
commencing from the plaintiff’s date of knowledge had been considered to apply
in all personal injury cases, whether the harm in question was caused
intentionally or unintentionally.
The six-year limitation period pursued a legitimate aim, namely to provide finality and legal certainty and to prevent stale claims from coming to court.
It was also proportionate and generous, taking into account that in personal injury cases the recollection of witnesses, rather than for example documentary evidence, was likely to be decisive. Furthermore, the period in question was longer than that included in many international conventions concerned with personal injury in transport, such as the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air 1929 (as amended by the Hague Protocol) and the Athens Convention relating to the Carriage of Passengers and their Luggage on Board Ships 1974, which allowed two years from the date of disembarkation in which to bring a claim for personal injury sustained during international carriage by air and sea respectively.
However, this right is not absolute, but may be subject to
limitations; these are permitted by implication since the right of access by
its very
nature calls for regulation by the State. In this respect, the
Contracting States enjoy a certain margin of appreciation, although the final
decision as to the observance of the Convention’s requirements rests with the
Court. It must be satisfied that the limitations applied do not restrict or
reduce the access left to the individual in such a way or to such an extent
that the
very
essence of the right is impaired. Furthermore, a limitation will
not be compatible with Article 6 para. 1 (art. 6-1) if it does not pursue a
legitimate aim and if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved (see the
Ashingdane
v.
the United Kingdom judgment of 28 May 1985, Series A no. 93, p.
24, para. 57 and, more recently, the Bellet
v.
France judgment of 4 December
1995, Series A no. 333-B, p. 41, para. 31).
However, since the very
essence of the applicants’ right of
access was not impaired and the restrictions in question pursued a legitimate
aim and were proportionate, it is not for the Court to substitute its own
view
for that of the State authorities as to what would be the most appropriate
policy in this regard.
II. ALLEGED VIOLATION
OF ARTICLE 8 OF THE CONVENTION TAKEN
ALONE (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Government challenged this assertion. The Commission
decided that it was not necessary to consider it, given its finding of a
violation
of Articles 6 para. 1 and 14 taken together (art. 14+6-1) (see
paragraph 71 below).
They argued, further, that the 1980 Act, in so far as it
discriminated between victims
of intentional and unintentional injury (see
paragraph 35 above), followed no legitimate aim, was not proportionate and
could not be regarded as necessary in a democratic society.
III. ALLEGED VIOLATION
OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLES 6 PARA. 1 AND/OR 8 (art. 14+6-1, art.
14+8)
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The Government disputed this claim, but the Commission found
violations
of Article 14 taken together with Article 6 para. 1 (art. 14+6-1).
The applicants argued that both the mental state of those who
injured them and the particular nature of the harm inflicted, which prevented
them from realising they had a litigable cause of action until it was too late
(see paragraph 47 above), were relevant, defining characteristics for the
purposes of Article 14 (art. 14). Thus, they were not only discriminated
against in comparison with the victims
of negligently inflicted harm, but also
in contrast to individuals who suffered other forms of intentionally caused
injury which did not lead to similar psychological ramifications.
Finally, they submitted that the discrimination they suffered could not be justified since the considerations of legal certainty and prevention of stale claims applied with equal force to unintentionally and intentionally caused injury.
The Government suggested a number of factors to help decide
whether any two groups were comparable for the purposes of Article 14 (art.
14). First, they argued that the discrimination had to be based on a personal
characteristic particular to each group. However, in contrast to such
attributes as race, sex, colour or language, the varying
mental states of those
allegedly responsible for harming different groups of
victims
was not relevant
to the latters’ personal status. Secondly, the discrimination had to have as
its consequence the advantaging of one group in society at the expense of
another; this criterion did not apply in the instant case. Finally, it was
necessary to look at the national legislation in its entirety. By asking that
they be compared with the
victims
of negligently inflicted injury, rather than
the
victims
of most other torts or breaches of contract, the applicants had
selected a purely notional comparator.
In the alternative, the Government advanced the view
that if
there had been any discrimination, it had been reasonably and objectively
justified in that it pursued a legitimate aim and had been proportionate.
At the hearing before the Court, the Delegate emphasised that
it was appropriate to compare the positions of the victims
of intentionally
caused injury on the one hand and those of negligently inflicted harm on the
other, since these two groups had been treated in exactly the same way as
regards the rules of limitation before the House of Lords’ decision in
Stubbings
v.
Webb
(see paragraphs 13 and 15 above).
Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations justify
a different treatment in law (see the Rasmussen v.
Denmark judgment of 28 November
1984, Series A no. 87, p. 15, para. 40).
The Court observes, first, that as between the applicants and
victims
of other forms of deliberate wrongdoing with different psychological
after-effects, there was no disparity in treatment, because the same
rules of limitation are applied to each group.
Secondly, the victims
of intentionally and negligently
inflicted harm cannot be said to be in analogous situations for the purposes of
Article 14 (art. 14). In any domestic judicial system there may be a number of
separate categories of claimant, classified by reference to the type of harm
suffered, the legal basis of the claim or other factors, who are subject to
varying
rules and procedures. In the instant case, different rules have evolved
within the English law of limitation in respect of the
victims
of intentionally
and negligently inflicted injury, as the House of Lords observed with reference
to the report of the Tucker Committee (see paragraph 15 above). Different
considerations may apply to each of these groups; for example, it may be more
readily apparent to the
victims
of deliberate wrongdoing that they have a cause
of action. It would be artificial to emphasise the similarities between these
groups of claimants and to ignore the distinctions between them for the
purposes of Article 14 (art. 14) (see, mutatis mutandis, the above-mentioned
Van
der Mussele judgment, pp. 22-23, para. 46).
FOR THESE REASONS, THE COURT
1. Holds by seven votes
to two that there has been no
violation
of Article 6 para. 1 of the Convention (art. 6-1) in respect of any
of the applicants;
2. Holds unanimously that there has been no violation
of Article
8 of the Convention (art. 8);
3. Holds by eight votes
to one that there has been no
violation
of Article 14 taken in conjunction with either Article 6 para. 1 or
Article 8 (art. 14+6-1, art. 14+8).
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 October 1996.
Rudolf BERNHARDT
President
Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the separate opinions of Mr Foighel and Mr MacDonald are annexed to this judgment.
R.B.
H.P.
PARTLY DISSENTING OPINION OF JUDGE FOIGHEL
1. In this case I find a violation
of Article 6 para. 1
(art. 6-1) which "secures to everyone the right to have any claim relating
to his civil rights and obligations brought before a court or tribunal"
(see the Golder
v.
the United Kingdom judgment of 21 February 1975, Series A
no. 18, p. 18, para. 36).
2. For the understanding of this very
important and basic
rule of the Convention, it is irrelevant whether English law distinguishes
between intentional and unintentional injuries for the purpose of limitation.
The problem in this case is how to interpret the Convention.
The case-law of the Court was for the first time formulated in
the Ashingdane v.
the United Kingdom case (judgment of 28 May 1985,
Series A no. 93, p. 24, para. 57) where it is stated:
"Certainly, the right of access to the courts is not
absolute but may be subject to limitations; these are permitted by implication
since the right of access ‘by its very
nature calls for regulation by the
State, regulation which may
vary
in time and in place according to the needs
and resources of the community and of individuals’ ... In laying down such regulation,
the Contracting States enjoy a certain margin of appreciation. Whilst the final
decision as to observance of the Convention’s requirements rests with the
Court, it is no part of the Court’s function to substitute for the assessment of
the national authorities any other assessment of what might be the best policy
in this field ...
Nonetheless, the limitations applied must not restrict or reduce
the access left to the individual in such a way or to such an extent that the
very
essence of the right is impaired ..."
3. This formulation of the law raises two questions. First,
did the victims
in this case, who had a claim relating to their civil rights,
have access to the courts? Second, for how long a period did they have access?
4. The second of these two questions is the easier: the victims
were allowed six years from the date of their eighteenth birthdays, a period
which is not unreasonable and which is well within the State’s margin of
appreciation. Neither is the imposition of a fixed limitation period in itself
enough to constitute a
violation.
5. But the crucial questions are: when should the limitation
period start? Did the applicants have effective access to the courts? If the
period starts and ends before the person concerned has knowledge of the facts
that the alleged injury was both substantial and attributable to the defendant,
the victim
has no chance ever to go to court.
6. The psychological reports submitted in these cases
demonstrate that the victims
of
sexual
abuse
suffer from a split personality.
They belong to a restricted, well-definable group of persons which only
recently has come to the fore, the so-called Child
Sexual
Abuse
Survivors. One
of the applicants was born in 1962, but it was not until 1987 that she first
mentioned the
abuse
to her doctor. She did not realise before that it was
relevant or would be interesting to the doctor, although she had suffered many
psychological problems due to it. Until she mentioned it to the doctor, she was
not aware of any causal link between her suffering and the
abuse;
in other
words, in the years during which she could go to the courts she was not aware
that she had a case, and when she became aware that she had a case, she had no
possibility to bring a claim.
7. The purpose of the rules of limitation, which is to
strike a proportional balance between the prevention of stale claims and
protecting the interests of the claimants, have no meaning when the victim
is
not aware that she even has a claim.
8. The suggestion by the majority (see paragraph 52) that a "criminal prosecution could be brought at any time and, if successful, a compensation order could be made", is not a reasonable alternative to the right stated in Article 6 (art. 6) to bring a civil claim to a court. In this sensitive area, where the conflict exists between daughters and their fathers, there is a major difference between claiming compensation and claiming that the father should be punished by a lengthy stay in prison.
9. In many countries in Europe the limitation period only
starts to run when the victims
have discovered or ought to have discovered the
material facts on which an action can be based. This principle of
discoverability was also accepted by the British legislature as early as 1963.
10. The Court normally recognises a margin of appreciation when evaluating whether a member State has observed an individual’s right protected by the Convention (in this case, the right of access to court). However, the margin of appreciation can never justify a State in depriving the individual altogether of the right in question.
Accordingly, I find the margin of appreciation recognised by
the majority far too wide, since the English legislation denies the very
essence of the right of access to court, in a situation where the applicants
had no realistic opportunity to go to court at any earlier stage.
11. It follows that I find a violation
of Article 6 para. 1
(art. 6-1).
PARTLY DISSENTING OPINION OF JUDGE MACDONALD
Contrary to the majority of the Court, I have reached the
conclusion that there has been a violation
of the applicants’ rights under
Article 6 para. 1 standing alone (art. 6-1) and also Article 6 para. 1 in
conjunction with Article 14 of the Convention (art. 14+6-1) in the present
case. Article 6 para. 1 (art. 6-1)
1. The general purposes of statutes of limitation are beyond doubt legitimate, but in the present case there was not, in my opinion, a reasonable relationship of proportionality between the means employed by the State and the objects sought to be achieved.
2. Having regard to the nature of the injury involved and
the fact that victims
of childhood
sexual
abuse
are frequently and for
various
periods of time unaware of the causal link between the damage suffered and the
acts responsible, the imposition of a fixed statutory time-limit which expires
six years after the date of the act or after the date on which the
victim
attains his or her majority (eighteen), regardless of the circumstances of an
individual case and without the availability of a procedure to mitigate against
the consequences of the applicable period, is, in my
view,
disproportionate in
that it unreasonably deprives the applicants of a right of access to court and
thus lies beyond the margin of appreciation enjoyed by States in establishing
time-limits for the introduction of proceedings.
3. It is clear from the jurisprudence of the Court that
limitations on the right of access to national courts "must not restrict
or reduce the access left to the individual in such a way or to such an extent
that the very
essence of the right is impaired" (see the Ashingdane
v.
the
United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). The
Convention "is intended to guarantee not rights that are theoretical or
illusory but rights that are practical and effective", (see the Airey
v.
Ireland judgment of 9 October 1979, Series A no. 32, p. 12, para. 24). In the
present case, the psychological harm suffered by the applicants caused them to
be unable to bring proceedings within the statutory time period. When they did
become aware of the link between their present psychological conditions and the
earlier
abuse,
they found that the "
very
essence" of their right of
access to court had not only been restricted or reduced but had indeed become
illusory.
4. Among the interests to be considered in reaching a
conclusion on the question of proportionality, one can readily identify the
need for legal certainty, the need to extinguish stale claims, and the need to
avoid or reduce the risk that the alleged wrongdoer might be unfairly treated
as a result of making findings of fact that go back many years. There are also,
however, important interests represented by the need to recognise and make
possible the vindication
of the rights of child
victims
who were not even aware
of the existence of their rights before those rights became statute-barred, and
the overall security, health, and well-being of society at large.
5. While the legislation clearly serves the traditional aims
of statutes of limitation relating to the control and prevention of injustice,
it does not (unfortunately) reflect a satisfactory recognition and
accommodation of other outstanding interests involved in the increasing effort
to meet the challenges which the problem of child sexual
abuse
presents to
legislators, draughtsmen, and judges. The traditional aims of the statute are
sought to be realised specifically at the expense of the applicants’ rights
under the Convention and, more generally speaking, the struggle to recognise
that
sexual
abuse
of children is a gross
violation
of children’s and human
rights and to promote fundamental change in the nature of social reactions and
attitudes to the depressingly prevalent phenomenon of child
sexual
abuse.
Article
14 (art. 14)
6. I am also of the opinion that the difference of treatment
between those persons whose injury was intentionally inflicted and those who
suffered injury resulting from an unintentional breach of duty was not based on
any objective and reasonable justification within the meaning of Article 14
of the Convention (art. 14). The Court of Appeal in its judgment in Stubbings
v.
Webb
of 27 March 1991 (see paragraph 14 of the judgment) concluded that the
limitation period started to run only when the applicant realised that her
symptoms were attributable to the
abuse
suffered as a child. Alternatively,
the Court of Appeal was prepared to exercise its discretion under the
Limitation Act 1980, section 33, to allow the action to proceed. Pursuant to
the Limitation Act 1980, section 11, this discretion is only available in cases
relating to personal injury arising from negligence, nuisance or breach of
duty. Relying on Letang
v.
Cooper [1965] 1 Queen’s Bench Reports p. 232, the
Court of Appeal found that section 11 did not distinguish between claims based
on unintentional and intentional trespass to the person. This finding was
overturned by the House of Lords which held that cases of deliberate assault
did not fall within the definition in section 11 but were more properly the
subject of an action founded on tort; there was no discretionary power to
extend the limitation period.
7. When compared to the position of claimants who have
sustained unintentional injury, the result of this measure is, in my view,
unreasonable and disproportionate. In the light of evidence to the contrary, it
cannot reasonably be contended that all
victims
of intentionally inflicted
injury are more likely to be aware of the facts on which to found a claim than
victims
of unintentional injury. Especially in the case of a child
sexual
abuse
victim,
it is not reasonable to make the
victim’s
access to a court depend on
whether the perpetrator inflicted the injury intentionally or negligently. The
legitimate purposes pursued by the State in imposing a limitation period on
actions are equally applicable to both types of claimant. I see no reasonable
justification for distinguishing between these types of injury or classes of
claimant.
8. It is apparent then that persons in an analogous position
to the applicants enjoy preferential treatment without reasonable or objective
justification for the distinction (see the Fredin v.
Sweden (no. 1) judgment of
18 February 1991, Series A no. 192, p. 19, para. 60). This difference of
treatment, based on seemingly artificial distinctions, due perhaps to the
difficulty of adapting the concept of limitations to these new factual
patterns, produces inequality of treatment which cannot be regarded as compatible
with the Convention (see the above-mentioned Airey judgment, p. 16, para. 30).
9. I conclude that there has been a violation
of Article 6
para. 1 of the Convention standing alone (art. 6-1) and also of Article 6 para.
1 taken in conjunction with Article 14 (art. 14+6-1)[4].
[1]
The case is numbered 36-37/1995/542-543/628-629. The first two numbers are the
positions of the cases Stubbings
and Others
v.
the United Kingdom and D.S.
v.
the United Kingdom (as they were at the time of the referral to the Court: see
paragraph 1 above) on the list of the cases referred to the Court in the
relevant year (third number). The last four numbers indicate the cases'
positions on the list of cases referred to the Court since its creation and on
the list of the corresponding originating applications to the Commission.
[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
[3]
For practical reasons these annexes will appear only with the printed version
of the judgment (in Reports of Judgments and Decisions 1996-IV), but copies of
the Commission's reports are obtainable from the registry.
[4]
For the contextual background against which the problem should be viewed,
see
in particular the conclusions of the Fourth UN Conference on Women (Beijing,
September 1995); the Stockholm World Congress on
Sexual
Exploitation of Children
(Stockholm, 1996); the Report of the European consultation for the World
Congress against Commercial Exploitation of Children (Strasbourg, 1996),
referring at p. 10 to the United Kingdom report calling for "more child
friendly and child sensitive procedures in the criminal justice system";
and the helpful scholarly studies by Edward H. Hondius ("Extinctive
Prescription on the Limitation of Actions", 1994) and Nathalie Des Rosiers
("Limitation Periods and Civil Remedies for Childhood
Sexual
Abuse",
Canadian
Family Law Quarterly,
vol. 9, 1992-1993, p. 43), both of which emphasise the
need for a range of flexible remedies.