CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22799/93                       by I.B.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 August 1993 by I.B. against the United Kingdom and registered on 21 October 1993 under file No. 22799/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      31 May 1994 and the observations in reply submitted by the      applicant on 8 December 1994;   -     the Commission's decision of 4 July 1995 to request further      observations from the respondent Government in relation to      Article 6 taken with Article 14;   -     the further observations submitted by the respondent Government      on 16 August 1995 and the observations in reply submitted by the      applicant on 20 October 1995.        Having deliberated;        Decides as follows:   THE FACTS          The applicant is a British citizen born in 1967 and resident in Dolgellau. He is represented before the Commission by Mr. Davies Sykes, a solicitor practising in Y Bala, Gwynedd.        The facts as submitted by the parties may be summarised as follows.   A.    The particular circumstances of the case        At the age of 11, the applicant was taken into the care of the local authority. He spent approximately six months in a children's home in Wrexham. During this period, the applicant was subjected to anal intercourse and was indecently assaulted by three members of staff. Those members of staff and one other are now facing trial on criminal charges following a police investigation into the children's home. The applicant is to appear as a prosecution witness as are other children who were resident in the home at the relevant time.        The police investigations were commenced in January 1992, during which the applicant was compelled to relive memories he had in general succeeded in suppressing.   Only in about August 1992 did he become psychologically capable of contemplating the institution of legal proceedings. Further, he was unlikely to have appreciated before August 1992 that (i) he had suffered significant physical and/or psychological injury, and (ii) that such injury was attributable in whole or in part to the sexual abuse that he had suffered aged 11.   Following the judgment of the House of Lords in the case of Stubbings v. Webb on 16 December 1992, it became evident that any such action would be statute-barred.        The applicant subsequently pursued an application to the Criminal Injuries Compensation Board and was offered £5000 compensation for the injuries he had suffered while in the care of the local authority.   The applicant is currently challenging the level of the award.   B.    Relevant domestic law   1.    The Limitation Act 1980 ("the 1980 Act")        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 in the time-limit where a person is under a 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.        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."        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 12;              (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..."   2.    Stubbings v. Webb and Another        On 16 December 1992, the House of Lords in the case of Stubbings v. Webb, held that claims arising from the intentional infliction of injury did not fall within the ambit of section 11 of the 1980 Act and were consequently outside of the scope of sections 14 and 33 of that Act.   Victims of intentional infliction of injury are therefore unable to obtain the benefit of the more flexible limitation periods available to victims of unintentional injury. In reaching that decision, the House of Lords overruled the Court of Appeal decision which was based on previous Court of Appeal precedent (Letang v. Cooper 1965 1 QB 232).   COMPLAINTS        The applicant complains under Article 6 of the Convention that he is denied access to court to take a civil action for damages in relation to incidents of sexual abuse to which he was subjected as a child.   He submits that intentionally inflicted injuries may give rise to latent psychological and physical damage that should be treated in the same way as latent damage arising out of accidental injuries. He further complains that the limitation period for someone of unsound mind does not start to run until that person ceases to be of unsound mind, however long a period after the relevant harm was done.        In his observations in reply the applicant also complains under Article 3 of the Convention that the abuse which he allegedly suffered in the children's home constituted inhuman and degrading treatment. He further complains in those observations that he did not have an effective domestic remedy as guaranteed by Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 August 1993 and registered on 21 October 1993.        On 2 March 1994, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.        The Government's observations were submitted on 30 May 1994, after one extension in the time-limit fixed for this purpose, and the applicant's observations in reply were submitted on 8 December 1994 after three extensions in the time-limit.        The applicant was granted legal aid on 18 October 1994.        On 4 July 1995 the Commission invited the Government to submit written observations in relation to Article 6 taken with Article 14 of the Convention.   These further observations were submitted on 16 August 1995.   The applicants observations in reply were submitted on 20 October 1995.   THE LAW   1.    The applicant complains under Article 3 (Art. 3) of the Convention that the abuse to which he was subjected when he was in the children's home constituted inhuman and degrading treatment. Article 3 (Art. 3) of the Convention reads as follows:        "No one shall be subjected to torture or to inhuman and degrading      treatment or punishment".        The Commission however is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter... within a period of six months from the date on which the final decision was taken." It is established case-law that the six month period may begin to run either from the date of a "final decision" taken in the exhaustion of an effective and suffient domestic remedy or from the date of the act or decision complained of where such act or decision finally determines the applicant's position on the domestic level (eg. No. 9599/81 dec. 11.3.85 D.R.42 p. 33).        The Commission notes that the applicant had the requisite knowledge and was psychologically capable of taking proceedings relating to harm suffered as a result of the abuse, at the latest, in August 1992.   On 16 December 1992 the decision of the House of Lords in the case of Stubbings v. Webb confirmed that the provisions of the Limitation Act 1980 barred him from taking civil   proceedings in respect of injuries resulting from that abuse. The Commission considers that the judgment of the House of Lords must be regarded as the "final decision" for the purposes of Article 26 (Art. 26) of the Convention. The applicant's complaint under Article 3 (Art. 3) was not introduced until his observations in reply on 8 December 1994. An examination of the case does not disclose the existence of any special circumstance which might have interrupted or suspended the running of that period.        This complaint was therefore introduced more than six months after 16 December 1992 and must be rejected as out of time pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains about being denied access to court as a result of the limitation period applicable to claims arising out of intentional injury as laid down in the 1980 Act. He submits that cases concerning psychological and physical damage caused by the intentional acts of another, can give rise to the same justifications for the extension of time limits as cases of unintentional injury, that is where the limitation period can run from "date of knowledge" and can be extended in the interests of justice. He invokes Article 6 para. 1 (Art. 6-1) of the Convention. The Commission also invited the parties to address issues which might arise under Article 14 of the Convention in conjunction with Article 6 (Art. 14+6).        Article 6 para. 1 (Art. 6-1) provides:        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time by an      independent and impartial tribunal established by law..."        Article 14 (Art. 14) provides:        "The enjoyment of the rights and freedoms set forth in this      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 argues that the present application has been made out of time, the relevant decision for the purposes of the commencement of the six month period being the judgment of 16 December 1992 of the House of Lords in the case of Stubbings v. Webb.        The applicant submits that the decision of the House of Lords in Stubbings v. Webb of 16 December 1992 merely clarified the meaning of the 1980 Act as regards the limitation period applicable in cases of intentional injury and that the limitation on his access to court by the provisions of the 1980 Act represents a continuing situation.        The Commission notes that prior to the House of Lords judgment in the case of Stubbings v. Webb it was accepted that the limitation period was the same in cases of intentional and unintentional injury to the person. It considers that the House of Lords judgment which ruled authoritatively on the proper statutory interpretation of the applicable limitation periods must be considered as determining the position of the applicant in relation to any existing rights of action and consequently must be taken as the "final decision" for the purposes of Article 26 (Art. 26) of the Convention. It does not find that the applicant can claim to be the victim of a continuing breach of the Convention in the circumstances of this case.        The Commission recalls that the applicant introduced his complaints concerning the operation of the limitation period on his claim on 10 August 1993, that is more than six months after the decision of the House of Lords on 16 December 1992. It has found no indication of any special circumstances which might have interrupted or suspended the running of the six month period.        It follows that the applicant has failed to submit these complaints within the requisite six month period and this part of his complaint must therefore be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.     Insofar as the applicant complains under Article 13 (Art. 13) of the Convention in relation to his complaints under Article 3 (Art. 3) and Article 6 para. 1 (Art. 6-1) of the Convention, the Commission must also dismiss these complaints as having been introduced out of time and reject them pursuant to Article 27 para. 3 (Art. 27-3) of the Convention for the same reasons as set out above.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE     Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                            (C.L. ROZAKIS)