EHRM 070524 schending art. 8 EVRM t.z.v. claim na incident met katapult op school
- Meer over dit onderwerp:
EHRM 070524 schending art. 8 EVRM t.z.v. claim na incident met katapult op school
CASE OF BIBA v. ALBANIA
(b) Application of these principles to the present case
61. The parties presented different accounts of the circumstances in which the incident occurred. Whereas the applicant argued that the school authorities had known that catapults had been circulating in the classrooms because one of the pupils had brought about twenty of them to school and distributed them among the pupils, the Government argued that the pupil who had injured the applicant’s son had used rubber bands, which the pupils used for securing rolls of banknotes. The applicant also contended that the school authorities had failed to take proper steps to prevent incidents like the one at issue.
62. In that connection, the Court notes that, as a matter of principle, it cannot replace the findings of fact of national authorities with its own. Its role is supervisory, so it assesses whether the response of the national authorities to an applicant’s complaint was in compliance with the State’s obligations under the Convention.
63. As to the response required of domestic authorities to the situation at issue, the Court reiterates that an attack on a person’s physical integrity would in principle require a criminal-law response, also in cases concerning Article 8 of the Convention (see, for example, Remetin v. Croatia, no. 29525/10, § 76, 11 December 2012; Remetin v. Croatia (no. 2), no. 7446/12, § 70, 24 July 2014; and Isaković Vidović v. Serbia, no. 41694/07, § 47, 1 July 2014). However, in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see Söderman v. Sweden [GC], no. 5786/08, § 85, ECHR 2013, see also Špadijer v. Montenegro, no. 31549/18, § 89, 9 November 2021).
64. Whereas in the present case the attack on the applicant’s son did involve physical violence, the Court notes that the perpetrator of the alleged act was a minor who was not yet fourteen and who was therefore below the age of criminal liability. Indeed, the applicant did not complain that the authorities had failed to comply with their positive obligation to conduct an effective prosecution in order to ensure adequate protection of his son’s rights under Article 8 of the Convention. More specifically, the applicant maintained that the domestic courts had not fulfilled their positive obligations on account of their failure to award him compensation. Accordingly, the applicant did not claim that recourse to criminal law was the only way that the respondent State could fulfil its obligation under Article 8 to protect his son from violence at school (compare Söderman, cited above, §§ 87 and 88).
65. The Court is, therefore, satisfied that in the present case, involving an attack by a pupil below the age of fourteen on another pupil using a catapult, in circumstances where there was no act of violence or deliberate omission to act on the part of any member of the school staff, a criminal investigation was not necessarily required (see, mutatis mutandis, F.O. v Croatia, cited above, § 93).
66. The Court reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether the respondent State, in handling the applicant’s case, has been in breach of its positive obligations under Article 8 of the Convention (see Sandra Janković, § 46, and Isaković Vidović, § 60, both cited above).
67. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8, taken alone or in combination with Article 3 – may include a duty to maintain and to apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman, cited above, § 80, with further references). In the context of violence at school, the Court reiterates that, in line with the above principles under Article 8 requiring the protection of children from any form of violence or abuse in educational institutions (see paragraphs 58-60 above), and with the relevant international standards (see paragraph 28 above), the domestic authorities must put in place appropriate legislative, administrative, social and educational measures to unequivocally prohibit any such conduct against children at all times and in all circumstances, and thus to ensure zero tolerance for any violence or abuse in educational institutions. This also relates to the necessity of ensuring accountability through appropriate criminal, civil, administrative and professional avenues. In this context, it is important to reiterate that the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention (see F.O., cited above, § 91).
68. As to the Albanian legal framework at the relevant time, the Court notes that section 66 of Law No. 7952 on educational institutions provided that the State has to ensure the safety of teachers and students as well as the security of educational institutions and their premises (see paragraph 25 above). Moreover, the operation of private schools, including safety in such schools, is entrusted in general terms to the Ministry of Education. The inspection duties of the State Inspectorate, under the supervision of the Minister of Education, include verification that safety measures, plans and internal rules for the prevention of harm and the safety of the students are adequate and complied with in practice. Under section 25 of Law 10433, a random inspection may be carried out, inter alia, when an accident or an incident has affected or risks affecting the life or health of individuals (see paragraph 27 above).
69. The Court notes, however, that the applicant did not request that any administrative measures or an official inquiry be undertaken (contrast F.O., cited above, § 12).
70. As to the civil law mechanisms in Albania, the Court notes that Article 608 of the Civil Code provides for an obligation to compensate for physical or psychological harm caused to another person. Article 614 and Article 615 make parents and guardians, including teachers in charge of minors, liable for damage caused by minors and persons under an incapacity, unless they prove that they could not have prevented the harm or damage. The type of damage for which compensation should be awarded is defined in Article 640 and Article 641, and includes harm to health and consequential expenses (see paragraph 18 above).
71. The applicant brought a civil action against the school, seeking compensation for the injury his son had suffered in an attack by another pupil of that school. The national authorities found that the school was not responsible because, inter alia, the incident had occurred during a break between classes when the school authorities, in their opinion, had not been able to supervise the pupils (see paragraph 9 above). However, the Court cannot agree with that assessment. It has already held that an educational institution is in principle under an obligation to supervise pupils during the entire time they spend in its care (see Kayak v. Turkey, no. 60444/08, § 60, 10 July 2012).
72. It is not disputed in the present case that the incident in question occurred on the school premises during regular school hours and that the perpetrator was another pupil of that school, engaging in high-risk actions. Educational institutions are expected to take appropriate measures to prevent the use of dangerous objects by pupils on school premises or custody. Firing a hard object from a rubber band at another pupil is potentially dangerous and may lead to serious injuries, as it happened in this case.
73. Even though teaching staff cannot be expected to ensure constant supervision of each pupil in order to respond instantly to any unpredictable behaviour, school authorities are responsible for school discipline, including among its pupils, at all times when the pupils are at school, or even outside it but in the school’s custody (compare Kayak, cited above, § 60). The protection of minors during school hours would otherwise not be ensured, since no authority would be responsible for their safety during breaks. In that connection, the Court notes that the national courts found that rubber bands, such as the one from which a missile was fired at the applicant’s son, had been used for securing banknotes, but the school failed to explain why eleven‑year-old pupils were in need of rubber bands to keep any presumably pocket money. The applicant claimed that another pupil had brought twenty catapults to school and distributed them among the pupils, who had openly used them in the days prior to the incident. These allegations of the applicant were not put to scrutiny or adequately addressed by the domestic courts in their reasoned judgments.
74. As to the measures the school took after the incident, the domestic courts found that it had collected donations from the parents of other students and had contacted its insurance company, asking it to pay the costs of the applicant’s son’s medical treatment (see paragraphs 7 and 9 above). However, the factual claims raised by the applicant were not addressed, namely that he had not been promptly informed of the incident and that the school authorities had not promptly reacted by ensuring that his son received urgent medical treatment. The Court cannot make its own assessment of those allegations; the domestic courts should have properly examined them in their reasoned judgments.
75. The Court also notes that the domestic courts found that the school had made insurance agreements with an insurance company covering all its pupils and that, therefore, the applicant should have sought compensation from that insurance company (see paragraphs 7 and 9 above). However, the Court notes that it was the school and not the applicant who made the agreement with the insurance company. The applicant had the right, recognised under domestic law, to seek compensation from the school. Had he obtained compensation, the school could have claimed reimbursement from the insurance company, had the legal requirements for such reimbursement been met. It is therefore difficult to consider that in their overall assessment the national authorities had due regard for the principle of the best interests of the child.
76. In these circumstances, the Court is not persuaded that the civil proceedings as carried out in the present case offered a proper protection for the situation at hand, in particular in view of the principle that children and other vulnerable individuals are entitled to effective protection by the authorities (see, for example, O’Keeffe v. Ireland [GC], no. 35810/09, § 44, ECHR 2014 (extracts)), a principle also recognised in Article 54 of the Albanian Constitution.
77. Taking into account the above considerations, the Court finds that the civil remedy available to the applicant in the circumstances of the present case did not provide adequate protection for the applicant’s son against an attack on his physical integrity and that the manner in which the legal mechanisms were implemented in the present case was defective to the point of constituting a violation of the respondent State’s obligations under Article 8 of the Convention, in particular given the paramount importance of the protection of the rights of children. hudoc.echr.coe.int/?i=001-233411
(met dank aan PS-Updates voor het signaleren van deze uitspraak)