State breached positive obligations to safeguard and protect the right to respect for private life by failing to prevent dog attack

Georgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011)

Summary

In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of Human Rights held that Romania violated article 8 of the Convention through failing to take sufficient measures to protect the physical and psychological integrity of the applicant, Ms Georgeta Stoicescu. Romania was also found to have breached article 6 of the Convention for denying the applicant an effective right of access to a court.

Facts

In October 2000, the applicant was attacked by a pack of stray dogs in front of her home in Bucharest. As a result of the attack, she suffered very serious injuries and became disabled.

The applicant tried on several occasions to bring civil action for damages. Her case was repeatedly dismissed without examination of the merits on the ground she had failed to identify the correct local authority responsible for the control of stray dogs. The cases were also initially delayed on the basis of the applicant being unable to pay the court fees.

The large population of stray dogs in Romania has been a public health issue for many years. It has been frequently reported in Romanian media and featured in discussion within Romanian and European political bodies. At the time of the incident involving the applicant, the population of stray dogs in Bucharest alone numbered some 200,000.

Decision

Article 8

Article 8 of the Convention relevantly provides:

• Everyone has the right to respect for his private…life…
• There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The applicant argued that her injuries were due to a lack of action on the part of the Romanian authorities to solve the problem of stray dogs and ensure the safety and health of the population. As a consequence, the applicant argued Romania had failed in its positive obligations under article 8 to protect the applicant's physical and moral integrity and prevent intrusion into her private life.

The Court identified that the concept of 'private life' includes a person's physical and psychological integrity, and article 8 gave rise to a positive obligation on States to ensure effective respect for the rights protected by the article, including "prevention of breaches of the physical and moral integrity of an individual by other persons when the authorities knew or ought to have known of those breaches". However, the Court acknowledged that such a positive obligation must be interpreted in a way that does not impose a disproportionate burden on authorities. Importantly, the Court held:

In the opinion of the Court, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life or the physical integrity of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

While there was evidence of Romanian Government action in response to the problem of stray dogs from 2001 onwards, the Court held that the Romanian Government had not provided any indication as to concrete measures taken by authorities at the time of the applicant's incident to "properly implement the existing framework with a view to addressing the serious problem to public health and threat to physical integrity of the population represented by a large number of stray dogs". According to the Court, the Romanian Government also failed to indicate whether the regulations in place at the time of the incident were capable of providing appropriate redress for victims of attacks by stray dogs.

On that basis, the Court concluded the Romanian authorities had failed to take sufficient measures to address the issue of stray dogs which, combined with their failure to provide adequate redress to the applicant, breached Romania's positive obligations under article 8.

Article 6

The applicant also argued that by dismissing her civil actions against Bucharest’s local authorities, the Bucharest courts had breached her right to a fair trial guaranteed by article 6 of the Convention.

The Court held that article 6 of the Convention enshrines a right of access to a court. For an individual's right of access to a court to be effective, there must be a clear and practical opportunity to challenge an act that has interfered with his or her rights. The Court held that "shifting onto the applicant the duty of identifying the authority against which she should bring her claim" did not strike a fair balance between the public interest and the applicant's rights of access to a court and breached article 6 of the Convention.

Relevance to the Victorian Charter

Right to Privacy

The right to privacy in article 8 of the Convention is reflected in section 13(a) of the Charter, which provides that “a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”.

As identified by Bell J in Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 at [28], while article 8 is expressed in positive terms (a 'right to respect'), section 13(a) of the Charter is expressed is expressed as a “negative right against unlawful and arbitrary interference”.

Recent cases discussing section 13(a), including Sudi and Kracke v Mental Health Review Board [2009] VCAT 646, support the view that the right to privacy in the Charter, like article 8 of the Convention, protects an individual's right to physical and psychological integrity. The discussion of article 8 in Stoicescu therefore provides a useful analysis of the balance that must be struck between rights of an individual to their physical integrity on the one hand and the responsibilities of public authorities to protect that right on the other.

However, as section 13(a) is couched in negative terms, it remains to be seen whether the positive obligations owed by the State to safeguard the right to private life, as expressed in Stoicescu, are applicable to the Charter. As noted in Castles v Secretary, Department of Justice [2010] VSC 2010, the right to privacy in the Charter is “of considerable amplitude” and of fundamental importance. However, whether the scope of the section is broad enough to impose positive obligations on public authorities to take measures to prevent risks to the physical integrity of an individual from materialising is unclear.

Right to a Fair Hearing

Stoicescu may also inform the interpretation of section 24 of the Charter (right to a fair hearing). The decision supports the view that excessive court fees and continual dismissal of an individual's attempt to access the court system may be in breach the Charter.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1193.html

Kate Mitchell is a lawyer with Allens Arthur Robinson.