Dialogue Across the Atlantic: Selected Case-Law of the European and Inter-American Human Rights Courts

DIALOGUE ACROSS THE ATLANTIC: SELECTED CASE-LAW OF THE EUROPEAN AND INTER-AMERICAN HUMAN RIGHTS COURTS aOLF LEGAL PUBLISHERS Dialogue Across the Atlantic: Selected Case-Law of the European and Inter-American Human Rights Courts This publication is available for downloading at: www.echr.coe.int and www.corteidh.or.cr. For news from ECHR follow the Twitter accounts: www.echr.coe.int/twitter and www.twitter.com/echrpublication. For news from IACtHR follow the accounts: www.twitter.com/CorteIDH and www.facebook.com/CorteIDH. Published by aolf Legal Publishers (WLP) P.O. Box 313 5061 KA Oisterwijk The Netherlands [email protected] www.wolfpublishers.com Printed on demand by CPI Wöhrmann Print Service (Zutphen, the Netherlands) on FSC paper (www.fsc.org) ISBN: 978-9-462-40280-5 © Council of Europe/European Court of Human Rights & Inter-American Court of Human Rights, 2015 FOREWORD In recent years the European and Inter-American Human Rights Courts have intensified their cooperation in the form of visits by judges, staff exchanges and videoconferences. Judicial dialogue between our two courts is now on a solid footing. The importance of this cooperation cannot be overstated, given the similarity of the rights and freedoms protected by the respective treaties governing the work of the two courts, and the existence of equivalent criteria of admissibility and principles of interpretation. Moreover, the increasing similarity of issues brought before the two courts has conferred a new relevance on their respective bodies of case-law. This book is a first, modest effort to present, in a single volume, a selection of the leading decisions delivered by each court in 2014. In addition to their importance in their own right, some of these decisions also serve to illustrate how the courts are increasingly having regard to each other’s approach to human rights protection. We hope this selection, published in English and Spanish, will assist in showing similarities in the manner in which each human-rights convention is interpreted and also where the judicial approach differs. Finally, we wish to express our gratitude to the Governments of Luxembourg and Norway for their generous financial contributions towards the staff-exchange programme enabling lawyers from each registry to spend time familiarising themselves with the working methods and case-law of the sister court. Erik Fribergh Pablo Saavedra Alessandri Registrar of the European Registrar of the Inter-American Court of Human Rights Court of Human Rights CONTENTS European Court of Human Rights Case of O’Keeffe v. Ireland [GC], no. 35810/09, 28 January 2014, ECHR 2014 .....................................................................................page 7 Case of Marguš v. Croatia [GC], no. 4455/10, 27 May 2014, ECHR 2014 ...................................................................................page 55 Case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014, ECHR 2014 .......page 115 Case of Hassan v. the United Kingdom [GC], no. 29750/09, 16 September 2014, ECHR 2014 ................................................page 183 Case of Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014, ECHR 2014 ........page 247 Inter-American Court of Human Rights Case of Liakat Ali Alibux v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of 30 January 2014. Series C No. 276 ..........................................................................page 311 Case of Norín Catrimán et al. (Leaders, members and activist of the Mapuche Indigenous People) v. Chile. Merits, Reparations and Costs. Judgment of 29 May 2014. Series C No. 279 ...............................page 341 Rights and guarantees of children in the context of migration and/or in need of international protection. Advisory Opinion OC-21/14 of 19 August 2014. Series A No.21...............................................page 403 Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28 August 2014. Series C No. 282 ...........................................page 461 Case of Espinoza Gonzáles v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of 20 November 2014. Series C No. 289 ........................................................................................page 517 EUROPEAN COURT OF HUMAN RIGHTS CASE OF O’KEEFFE v. IRELAND (Application no. 35810/09) GRAND CHAMBER JUDGMENT OF 28 JANUARY 2014 [Extracts]1 1. This is an excerpt from the judgment delivered by the Grand Chamber in the case of O’Keeffe v. Ireland. It contains a summary which does not bind the Court. The full English text of the judgment is available in the HUDOC database at: http://hudoc.echr.coe.int/eng?i=001-140235. In addition to the authentic English and French versions of this judgment, HUDOC also contains Spanish translations of select case-law at: http://hudoc.echr.coe.int. ECHR – CASE OF O’KEEFFE v. IRELAND 9 SUMMARY1 Sexual abuse of child by teacher in Church-managed school Having regard to the fundamental nature of the rights guaranteed by Article 3 and the particularly vulnerable nature of children, it is an inherent obligation of government to ensure their protection from ill-treatment, especially in a primary- education context, through the adoption, as necessary, of special measures and safeguards. The existence of useful detection and reporting mechanisms were fundamental to the effective implementation of the criminal law designed to deter child sexual abuse. A State could not absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals (see paragraphs 146, 148 and 150 of the judgment). Article 3 Positive obligations – Sexual abuse of child by teacher in Church-managed school – Inherent obligation of government to ensure protection of children from ill-treatment – Inability of State to absolve itself from obligations by delegating duties to private bodies or individuals – Awareness of risk – Effectiveness of mechanisms for detecting and reporting ill-treatment – Effective investigation Article 13 in conjunction with Article 3 Effective remedy – Absence of domestic remedy to establish liability of State in respect of child abuse by teacher in Church-managed school * * * Facts The applicant alleged that she had been subjected to sexual abuse by a teacher (L.H.) in 1973 when she was a pupil in a State-funded national school owned and managed by the Catholic Church. National schools were established in Ireland in the early nineteenth century as a form of primary school directly financed by the State, but administered jointly by the State, a patron, and local representatives. Under this system the State provided most of the funding and laid down regulations on such matters as the curriculum and teachers’ training and qualifications, but most of the schools were owned by clerics (the patron) who appointed a school manager (invariably a cleric). The patron and manager selected, employed and dismissed the teachers. 1. This summary by the Registry does not bind the Court. 10 DIALOGUE ACROSS THE ATLANTIC: SELECTED CASE-LAW OF THE EUROPEAN AND INTER-AMERICAN HUMAN RIGHTS COURTS L.H. resigned from his post in September 1973 following complaints by other pupils of abuse. However, at that stage the Department of Education and Science was not informed about the complaints and no complaint was made to the police. L.H. moved to another national school, where he continued to teach until his retirement in 1995. The applicant suppressed the abuse to which she had been subjected and it was not until the late 1990s, after receiving counselling following a police investigation into a complaint by another former pupil, that she realised the connection between psychological problems she was experiencing and the abuse she had suffered. She made a statement to the police in 1997. L.H. was ultimately charged with 386 criminal offences of sexual abuse involving some twenty-one former pupils of the national school the applicant had attended. In 1998 he pleaded guilty to twenty-one sample charges and was sentenced to a term of imprisonment. The applicant was subsequently awarded compensation by the Criminal Injuries Compensation Tribunal and damages in an action against L.H. She also brought a civil action for damages alleging negligence, vicarious liability and constitutional responsibility on the part of various State authorities (but, for technical reasons, she did not sue the Church). However, the High Court rejected those claims in a judgment that was upheld by the Supreme Court on 19 December 2008, essentially on the grounds that the Irish Constitution specifically envisaged a ceding of the actual running of national schools to interests represented by the patron and the manager, that the manager was the more appropriate defendant to the claim in negligence and that the manager had acted as an agent of the Church, not of the State. In her complaint to the Court, the applicant complained, inter alia, that the State had failed to structure the primary-education system so as to protect her from abuse (Article 3) and that she had not been able to obtain recognition of, or compensation for, the State’s failure to protect her (Article 13). Law 1. Article 3: a. Substantive aspect – It was an inherent obligation of government to ensure the protection of children from ill-treatment, especially in a

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