The European Court of Human Rights (ECHR) on Tuesday ruled by a majority that Albania violated the right of access to justice of the applicant after his son was severely beaten up at school.
The applicant’s son was hit in 2011 by another underaged pupil, resulting in the loss of vision in one of his eyes. The applicant started a civil action for compensation in the Tirana District Court against the school on behalf of his son. The applicant alleged that the school failed to take all necessary precautions to prevent his son’s injury, thus resulting in the bearing of responsibility for the damage. In 2013 the Tirana District Court dismissed the compensation claim, as the harm that had been caused was caused by a third party, and not the defendant. The applicant then lodged two appeals with the Tirana Court of Appeal and the Supreme Court, both of which were dismissed. The Supreme Court ruled that it could not interfere with the Court of Appeal’s decision unless there had been an incorrect application of substantive or procedural law, which was not the case. At last, the applicant lodged a constitutional complaint to the Constitutional Court in 2018, with the complaint being inadmissible because it had been submitted too late.
The applicant went to the ECHR, complaining that the right laid out in Article 8 of the European Convention on Human Rights (Convention) was violated by Albania. The right to respect for private and family life is protected in Article 8 of the Convention. Furthermore, the applicant complained about the violation of the right to a fair trial in Article 6 § 1 of the Convention, which contains the right to access a court. The majority ruled in favour of the applicant and reasoned that the domestic courts did not examine the case carefully and thus did not effectively protect the physical integrity of the child. However, the dissenting opinion argued that the primary role of the courts is to adjudicate according to the rules of a fair hearing and not to protect the physical integrity of a minor from a serious injury. The steps taken by the authorities, though did not satisfy the applicant, did not amount to a violation of the Convention.
The ECHR refers to the case of Đurđević v. Croatia, in which it decided that school discipline falls under the right to education and that states cannot absolve themselves from their responsibility by delegating their obligation to private bodies or individuals. Furthermore, the majority argued in this case that the obligations under Article 8 may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The court finds that the civil remedies available to the citizen in this case did not provide adequate protection against an attack on the physical integrity of the applicant’s son. Thus the state violated its obligations under Article 8 of the Convention. On the other hand, the minority argued that the majority’s ruling – embracing the general obligation to supervise owed by the school authorities – is a case-law development that was not based on any European consensus without a comparative-law survey. The minority also believed that the majority’s reasoning is flawed in assuming that States have a positive obligation whereby all educational institutions, public or private, are required to ensure their pupils’ safety at all times.
With regards to the complaint about the violation of the right to access a court, the ECHR decides that the applicant had been deprived of this right, as the date had been counted from when the decision of the Supreme Court was given, instead of the date when it had been served on the applicant.
