Application No. 28995/95
by Barry, James and Noelle FLATTERY
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 8 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 21 August 1995 by
Barry, James and Noelle FLATTERY against Ireland and registered on
22 November 1995 under file No. 28995/95;
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
23 July 1996 and the observations in reply submitted by the
applicants on 12 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Irish citizens born in 1960, 1955 and 1951,
respectively. They all reside in County Meath, Ireland. The first
applicant and the third applicant are farmers by profession and the
second applicant is a Development Officer. Until recently the
applicants were represented before the Commission by
Ms. Julie O'Connell, a solicitor practising in Dublin. The facts as
submitted by the applicants may be summarised as follows.
The second applicant and his mother, Mary Flattery, were adjudged
bankrupt on 29 May 1987 and on 2 June 1987. None of the creditors of
the second applicant or Mary Flattery elected to pursue their claims
in bankruptcy and the only issue which remained to be determined was
the amount of the Official Assignee's fees (the State official who
deals with the administration of bankruptcy proceedings) to be paid by
the second applicant and Mary Flattery before they would be entitled
to be discharged from bankruptcy.
The Official Assignee calculated his fees at £51,000.00. The
second applicant and Mary Flattery contested this amount and, on
18 January 1988, the matter was heard by a judge of the High Court.
Judgment was reserved.
In July 1989 and June 1990 the second applicant and
Mary Flattery, respectively applied to be discharged from bankruptcy.
Consent for such discharges was given on the basis that £26,819.00 be
lodged by the second applicant and £25,242.50 by Mary Flattery with the
Official Assignee in light of the outstanding issue of the Official
Assignee's fees - the judgment of the High Court had not yet been
delivered.
Apart from £8012.16 (representing the balance of the proceeds of
the sale of the home of the second applicant in Dublin, which money was
already held by the Official Assignee), the remainder of the money was
lodged by the first applicant (the second applicant and Mary Flattery
not having the resources themselves).
On 1 May 1995 Mary Flattery died.
Subsequently, the applicants' solicitors lodged papers in the
High Court dated 13 and 14 June 1995 to apply for the release of the
money lodged pending the delivery of the High Court judgment, an action
taken mainly in an attempt to highlight the delay as counsel was of the
opinion that there was little chance that the money would be released
on foot of the application. The documents lodged included an affidavit
sworn by the first applicant exhibiting the various attendance notes,
file notes and letters evidencing the various attempts which had been
made already to obtain delivery of the judgment. Within hours of the
papers being lodged the applicants' solicitors were advised that the
judgment would be delivered later that week.
The High Court judgment was delivered on 16 June 1995. The
amounts, previously fixed as payable by the second applicant and
Mary Flattery, were set aside as excessive, the court finding that the
second applicant and Mary Flattery were each to pay £750 in fees to the
Official Assignee. The balance of the money already lodged was to be
released with interest.
COMPLAINTS
The applicants complain about the delay in the delivery of the
judgment in relation to the Official Assignee's fees and invoke
Article 6 para. 1 of the Convention in this respect.
The applicants also complain that the retention of the money,
which had been lodged for over five years with the Official Assignee
pending the High Court judgment, constituted an interference with
possessions contrary to Article 1 of Protocol 1.
The applicants further claim that there was no effective domestic
remedy contrary to Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 August 1995 and was
registered on 22 November 1995.
On 15 May 1996 the Commission decided to communicate the
applicants' complaints as regards the length of proceedings under
Article 6 para. 1, Article 13 and Article 1 of Protocol No. 1.
On 23 July 1996 the Government submitted their observations and
the observations in reply were submitted by the applicants on
12 September 1996.
By letter dated 15 May 1997 the Government indicated that the
parties wished to explore a settlement of the matter. By letter dated
9 September 1997 the applicants confirmed that the parties had agreed
in principle to submit the matter to domestic arbitration and that
negotiations were taking place as to the terms of the arbitration. The
parties subsequently informed the Commission of progress in those
negotiations by the applicants' letters dated 15 October and
28 November 1997 and 27 February 1998 and by the Government's letters
dated 20 October and 9 December 1997 as well as 2 March, 8 April and
15 May 1998.
By letter dated 29 June 1998 the Government confirmed agreement
and signature of the arbitration terms and furnished a copy of the
signed Arbitration Agreement dated 18 June 1998 to the Commission. By
letters dated 29 June and 1 July 1998 the applicants confirmed their
signature of the Arbitration Agreement and expressed their wish to
withdraw the present application.
REASONS FOR THE DECISION
The Commission recalls that by letters dated 29 June and
1 July 1998 the applicants and the Government informed the Commission
that they had signed a detailed Arbitration Agreement with a view to
a settlement of the present application. Consequently, the applicants,
by letters dated 29 June and 1 July 1998, informed the Commission of
their wish to withdraw the present application.
In light of these events, the Commission finds that the
applicants do not intend to pursue the present application within the
meaning of Article 30 para. 1(a) of the Convention. The Commission,
furthermore, having regard to Article 30 para. 1 in fine, finds no
special circumstances regarding respect for human rights as defined in
the Convention which require the continuation of the examination of the
application.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy