Instantie

Europees Hof voor de Rechten van de Mens

Samenvatting

De vraag die in deze zaak aan de orde is: in hoeverre verplicht het EVRM
ertoe rekening te houden met de specifieke problematiek van seksuele
kindermishandeling bij het vaststellen van verjaringstermijnen.

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Article 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, 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, 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 wrong-doer 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

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. 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
imitation 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 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, 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, 30).

9. -I conclude that there has been a violation of Article 6 1 of the
Convention standing alone and also of Article 6 1 taken in conjunction with
Article 14 (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 imitation 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.).

Rechters

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.