CEDH · CASELAW;CLIN;ENG — 28 octobre 1998

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s85F2E5C5 { width:30.44pt; display:inline-block } .s6863D229 { width:26pt; display:inline-block } .s92848351 { width:23.22pt; display:inline-block } .sBDAE81C4 { width:27.67pt; display:inline-block } .sC7C396CD { width:24.89pt; display:inline-block } .s90A93616 { width:27.66pt; display:inline-block } .sE4E38D5F { width:23.77pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. October 1998 Osman v. the United Kingdom - 23452/94 Judgment 28.10.1998 [GC] Article 2 Positive obligations Article 2-1 Life Alleged failure of authorities to protect right to life of first applicant’s husband and of second applicant from threat posed by individual: no violation   Article 6 Civil proceedings Article 6-1 Access to court Lawfulness of restrictions on applicants’ right of access to a court to sue authorities for damage caused by said failure: violation   [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions ). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   ARTICLE 2 OF THE CONVENTION A.   Establishment of the facts Applicants dispute exhaustiveness of facts as found by Commission – Court, following usual practice, assesses whether facts disclose violation of Article 2 in light of all material before it including material obtained of its own motion. B.   Alleged failure to protect right to life Not disputed that Article 2 may imply, inter alia, positive obligation for State to take preventive operational measures to protect individual whose life at risk from criminal acts of another individual – on other hand, scope of such obligation contested – for Court, it must be established to its satisfaction that authorities knew or ought to have known at time of existence of real and immediate risk to life of individual and failed to take measures which, judged reasonably, might have been expected to avoid said risk – sufficient in this regard for applicant alleging breach of positive obligation to show that authorities did not do all that could reasonably be expected of them in circumstances to avoid risk. On facts of instant case, Court not persuaded that police at any decisive stage knew or ought to have known that lives of applicants’ family at real and immediate risk from third party (Paget-Lewis) – thus, in early stages police could reasonably conclude in light of contacts with school and information available to them that life of second applicant not threatened by Paget-Lewis – significant that Paget-Lewis continued to teach at school until June 1987 despite school’s concern – psychiatrist had concluded over this period on basis of three interviews with Paget-Lewis that latter did not display any signs of mental illness or propensity to violence – unreasonable to expect police to assess his behaviour any differently – furthermore, no evidence on which to prosecute Paget-Lewis for commission of (non-life threatening) attacks on family home and property – various cryptic threats uttered by Paget-Lewis could not reasonably be construed as threats against lives of family – police cannot be criticised for failing to use powers of arrest, search, etc. to neutralise threat – cannot be said that use of these powers, judged reasonably, would have been productive.   C.   Alleged breach of procedural obligation under Article 2 Appropriate to consider grievance in context of applicants’ complaints under Articles 6 and 13. Conclusion : no violation (seventeen votes to three). II.   ARTICLE 8 OF THE CONVENTION Court recalls that it did not find it established that police knew or ought to have known at relevant times that Paget-Lewis represented real and immediate risk to life of second applicant and police response not incompatible with authorities’ duty under Article 2 to safeguard right to life – conclusion equally valid for a finding of no breach of any positive obligation under Article 8 to safeguard second applicant’s physical integrity. Furthermore, police had formed view that no evidence on which to prosecute Paget-Lewis in respect of campaign of harassment against family – cannot be maintained therefore that authorities in breach of Article 8 positive obligation on this account either. Conclusion : no violation (seventeen votes to three). III.   ARTICLE 6 § 1 OF THE CONVENTION A.   Applicability Applicants enjoyed right derived from general law of negligence to request domestic court to rule on their arguable claim that they were in a relationship of proximity to police, that harm suffered was foreseeable and that in circumstances it was fair, just and reasonable not to apply rule excluding liability of police for alleged negligence in respect of investigation and suppression of crime – assertion of that right by applicants sufficient in itself to ensure applicability of Article 6 § 1 – domestic case-law confirms that exclusionary rule not regarded as absolute bar to such civil actions against police. B.   Compliance Reiteration of principles governing lawfulness of limitations on right of access to a court. 1.   Legitimacy of aim Reasons given by House of Lords in Hill case as justification for application of exclusionary rule may be accepted as legitimate in terms of Convention (maintenance of effectiveness of police service and hence prevention of disorder or crime). 2.   Proportionality of restriction Court of Appeal in instant case regarded exclusionary rule as absolute defence to applicants’ civil action against police – domestic court gave no consideration to competing public-interest considerations at stake: applicants acknowledged by Court of Appeal to have   satisfied strict proximity test; case involved allegations that police gravely negligent in failing to protect life of a child (second applicant) and argument that police had assumed responsibility for applicants’ safety; harm suffered of most serious nature – for Court such considerations require to be examined on merits and not dismissed in application of a rule in a way tantamount to grant immunity to police – Court not persuaded by Government’s arguments that applicants had adequate alternative remedies to secure compensation – application of rule in instant case must be considered a disproportionate interference with applicants’ right of access to a court. Conclusion : violation (unanimously). IV.   ARTICLE 13 OF THE CONVENTION Requirements of Article 13 less strict than and here absorbed by those of Article 6 in respect of which violation found. Conclusion: not necessary to examine complaint (nineteen votes to one). V.   ARTICLE 50 OF THE CONVENTION A.   Pecuniary and non-pecuniary damage: Amounts claimed by applicants speculative – sum awarded to compensate for loss of opportunity to sue police. B.   Costs and expenses: Amount claimed awarded in part. Conclusions : specified sums awarded to the applicants in respect of damage costs and expenses (unanimously) and remainder of claims dismissed (nineteen votes to one).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes