Biba v Albania: positive obligations under Article 8 and the question of causation

By Vladislava Stoyanova

Biba v Albania raises multiple questions about the Court’s reasoning when State responsibility is established for breach of positive obligations under Article 8 ECHR. Given that three of the seven judges dissented, different answers are possible as to the scope and the content of these obligations in the school context and the standards for determining a breach. After briefly describing the factual circumstances, the post focuses on the standard of causation in the determination of a breach of the obligation under Article 8 and, relatedly, on the mixture of substantive and procedural deficiencies in the Court’s reasoning. Importantly, the Court found a violation not only of Article 8, but also of Article 6 based on the Albanian Constitutional Court’s incorrect calculation of the time-limit within which the applicant had had to lodge his constitutional appeal at the domestic level. This finding under Article 6 was straightforward and will not be covered here.

1. Facts

A thirteen-year-old pupil used a catapult to shoot a projectile into the right eye of another pupil. This caused almost total blindness of the eye. The incident happened at the premises of a private school in Albania, during a break between classes. The father of the injured child brought civil proceeding against the school to seek compensation. He claimed that the school authorities failed to protect his son from the injury caused by another pupil and to react adequately to the incident. No proceedings were initiated against the parents of the child who used the catapult. No administrative proceedings were initiated against the State.

The District Court dismissed the claims against the school since ‘the harm caused to the applicant’s son had not been caused’ by the school. In particular, the District Court established that there was ‘no causal link between the damage suffered by the applicant’s son and the actions or omissions of the school.’ The District Court also argued that since the injury had been caused by the other pupil, it was the latter’s parents who were ‘directly liable to pay compensation for that injury.’ (para 7) The father appealed to the Tirana Court of Appeal. On the question of causation, he submitted that ‘his son had been in the custody of the school when the incident had occurred and that that was sufficient to establish a causal link between the school’s actions and omissions and the injury suffered by his son.’ He also highlighted that the school had permitted the pupils to bring dangerous devises to the school premises. (para 8) The Court of Appeal dismissed the appeal. Similar to the District Court, it held that there was no causal link between omissions of the school and the harm suffered by the child. The Court of Appeal reasoned that ‘the school authorities could not have foreseen that such an incident might happen.’ In addition, ‘even though the incident had occurred when the applicant’s son was at school, it happened during a break when he had been leaving his classroom to head for the physical education class, at a time when the pupils had not been under the direct control of a teacher, and therefore the school could not be held liable for the actions of its pupils.’ (para 9 (emphasis added).) The Distritct Court added that the applicant could have brought a case against the parents of the pupil who caused the harm or against the school’s insurance company.

2. The applicant’s case before the ECtHR

Clearly no actors whose conduct can be directly attributed to the State inflicted any harm. Therefore, for the case to be brought against Albania as responsible for the harm, the applicant had to formulate omissions committed by the State and the Court had to establish that these omissions were faulty (i.e. the State was under the obligation to act, but it failed).

Which omissions did the applicant formulate? The omissions were of three types: omissions prior to the accident, omissions after the accident and omissions as to how the domestic courts reasoned. It might be more appropriate to label the latter as procedural deficiencies in the domestic courts’ reasoning. As to the first, the applicant’s argument was that the State ‘failed to adequately supervise the licensed private school’ (para 52). This implied that the State could have prevented the accident by taking certain measures. As to the second type of omissions, the applicant argued that his son had not received prompt medical treatment on the day of the accident and that he had not been informed promptly about the incident. As to the procedural deficiencies, the applicant claimed that the domestic courts did not address certain arguments, such as that pupils had brought catapults to the school and the school had not stopped them. These three omissions were of different nature, but as I will show below, the Court blended them all up in its reasoning. Prior to explaining the blend, the starting points of the reasoning also need to be clarified since they facilitated the blending.

3. The starting points in the Court’s reasoning

With reference to its previous judgments in Đurđević v Croatia and F.O. v Croatia, the Court formulated two ‘general principles’ that it used as starting points in its reasoning (paras 59 and 60). I would frame the first one as the ‘primary duty’ principle and the second one as the ‘no absolution’ principle.

3.1. The ‘primary duty’

To explain the ‘primary duty’, a full quotation of the relevant paragraph is worthwhile:  

The idea of ‘the primary duty’, as opposed to any other duties, seems to imply an assumption that, as a matter of principle, the State is at all times obliged to ensure pupils’ safety at schools. It implies that in case of harm, the burden is on the State to demonstrate that it was not responsible since it took sufficient and adequate measures. In terms of causation, this would imply an assumption that harm in the school context is accepted as being caused by the State. It is the State that has to rebut the presumption by showing that its omissions did not cause the harm.

3.2. No absolution

The second general principle concerns the involvement of private actors. It can be framed as the ‘no absolution’ principle. In particular, the Court observed that:

This principle seems to be the logical extension of the ‘primary duty’ principle: if harm materialises at schools, irrespective of who is the direct agent of this harm and whether their conduct is attributable to the State, the assumption is that the State should have prevented it. In other words, the involvement of private actors (including another pupil) does not break the assumed causal lines that lead to responsibility.

It should be also noted that the reference to ‘zero tolerance’ in Biba v Albania supports these two starting points. At para 67, the Court held that

3.3. The implications of these starting points

One can understand and justify these two starting points (‘primary duty’ and ‘no absolution’) given the specific situation of children and given, more generally, the normative underpinning of human rights law. The latter, as noted by the Concurring Opinion of Judge Serghides, demand effective protection of important interests (para 4). This in turn entails a strong focus on the harmful outcome (i.e. a child has been seriously injured). This focus implies that the reasoning works from the initial point of the harmful outcome towards the means and the justifications for finding responsibility for this outcome. This direction of the reasoning implies less attention to causal lines.

If the above-described principles, however, were to by imposed on domestic civil law proceedings, difficulties emerge. Civil-law remedies do not necessary operate with these starting points and, relatedly, apply causation standards (for a comparison between human rights law and tort law see Stoyanova). Let’s see now how the Court addressed these difficulties.

4. The amalgamation of substantive omissions and procedural deficiencies

First, it needs to be highlighted that in accordance with its previous case law (the leading judgment here is Söderman v Sweden), the Court held that the case did not demand criminal law remedies (for detailed examination as to when criminal law remedies are required as a matter of ECHR positive obligation see Stoyanova open access and Kamber). In particular, the severity of the harm was not of such a degree and nature as to require criminal law remedies and the civil law remedies were ‘capable of affording sufficient protection’ to the applicant. (para 63)

The focus in the Court’s reasoning was therefore on the legal framework of domestic civil remedies. How does this relate and correspond to the omissions invoked by the applicant, as outlined above? It is difficult to see the relationship to the first and second omission. The Court in para 64 reformulated the omission in this way: ‘the applicant maintained that the domestic courts had not fulfilled their positive obligations on account of their failure to award him compensation.’ According to this reformulation, the omission was the failure to compensate, which appears to be a procedural omission (see also para 4 of the Joint Partly Dissenting Opinion where it is noted that ‘the Convention has never guaranteed a right to financial compensation for damage caused both by and to private individuals’). The failure to compensate as a procedural omission, can be distinguished from any substantive omissions in terms of omitted measures by the school and, by way of extension due to the operation of the ‘no absolution’ principle, by the State, to prevent the harm (e.g. failure to supervise the school).

In para 71, however, the Court refers to substantive omissions:

The reasoning that follows in para 72 and 73 is an application of the two general principles (i.e. ‘primary duty’ and no absolution) that imply an expectation of preventing harm at all times at school and placing the burden on the State. As to the burden, the Court more specifically noted ‘the school failed to explain why eleven-year-old pupils were in need of rubber bands to keep any presumably pocket money’ (para 73).

The Court’s reasoning then swerves back to procedural deficiencies. These were not, however, the failure to compensate as such, but deficit fact finding at national level:

See also the statements in para 74: ‘the factual claims raised by the applicant were not addressed’ and ‘[t]he Court cannot make its own assessment of those allegations; the domestic courts should have properly examined them in their reasoned judgments.’

In sum, the reasoning is an amalgamation of statements about substantive and procedural deficiencies, without any regard to how any of these were causally linked to the harm. It was precisely the absence of causation between the substantive omissions invoked by the applicant and the harm, that led the domestic courts in the civil proceedings not to rule in his favour. If indeed this national ruling was characterized by insufficient factual examination of the incident by the Albanian civil courts, then the Court should have exclusively focused on this procedural deficiency, without mixing it with statements about substantive deficiencies.

5. Conclusion

Biba v Albania exposes an effort by the Court to underscore the importance of safety of pupils during their time at school. To do this, the Court invoked the ‘primary duty’ and the ‘no absolution’ principles that guide the establishment of responsibility under the ECHR. Yet, the importance of pupils’ safety and of prevention of harmful outcomes should not undermine the analytical rigour for determining responsibility under the ECHR. Such rigour would require separation of any procedural deficiencies in the fact finding performed by the national courts and any possible substantive omissions. Such rigour would also require a consideration of how any substantive omissions can be causally linked to the harm.