FIRST CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 19538/92
by GOODMAN INTERNATIONAL
and Lawrence GOODMAN
against Ireland
The European Commission of Human Rights sitting in private on
12 January 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 17 February 1992
by by GOODMAN INTERNATIONAL and Lawrence GOODMAN against Ireland and
registered on 24 February 1992 under file No. 19538/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the present case, as submitted by the applicants
and which may be deduced from documents lodged with the application,
may be summarised as follows.
The first applicant, Goodman International, is an incorporated
company registered in Ireland. The second applicant, Lawrence Goodman,
is an Irish citizen born in 1937 and resident in Ireland. He is chief
executive of the first applicant. Both applicants are represented
before the Commission by Messrs. A & L Goodbody, Solicitors, practising
in Dublin, Ireland.
A. The particular circumstances of the case
The first applicant is the largest company operating in the beef
processing industry in Ireland. It holds 40 % of the market.
For some years prior to May 1991 allegations of large scale
illegal activities in the beef industry were made in Dail Eirean (the
Lower House of the Irish Parliament). Similar allegations were made
on a television programme entitled "World in action" transmitted by
Independent Television in Ireland on 13 May 1991. Several of the
allegations involved the activities of the applicants, certain
politicians, customs and tax authorities, banks and the Department of
Agriculture and Food.
Dail Eirean adopted a resolution on 24 May 1991 that it was
expedient that a Tribunal of Inquiry (hereafter referred to as "the
Tribunal") be established to enquire into these allegations, as they
were of urgent public interest given the important position of the beef
industry in the economic life of the country. Seanad Eirean (the Upper
House of the Irish Parliament) adopted a similar resolution on 29 May
1991.
Pursuant to these resolutions, the Minister for Agriculture and
Food by Order dated 31 May 1991 appointed the President of the High
Court, Mr. Justice Hamilton, to be the sole member of the Tribunal.
The Tribunal is required to report on its conclusions to the Dail and
the Seanad and, if it thinks fit, make recommendations.
The Tribunal held a preliminary hearing on 21 June 1991, at which
a "statement of allegations" was drawn up identifying the alleged
illegal activities, fraud and malpractice in the beef processing
industry which were to be investigated.
In September 1991 and on 9 October 1991 the applicants made
written submissions and oral submissions respectively to the Tribunal
objecting to the nature of the inquiry and the manner in which it was
to be conducted. These submissions were rejected by the Tribunal.
As to the procedure for obtaining evidence Mr. Justice Hamilton
remarked as follows :
"The rules of evidence which have been established over many
years by the courts are of extreme importance to ensure fair
play. And having regard to the nature and importance of the
allegations and the possible effect on the good name and
reputation of any person appearing before it, it is my intention
to apply, wherever possible, the rules of evidence which have
been established over many years, reserve the right in
exceptional circumstances, having heard objections to the
admissibility of such evidence in the ordinary way, and counsel
for any party affected in any way by any evidence sought to be
adduced before the Tribunal will have ample opportunity of
objecting to its admissibility and secure a ruling thereon.
(The applicants' counsel) has sought a ruling from this court or
this Tribunal also with regard to the onus of proof. Again, the
onus of proof will differ having regard to the nature of the
allegation, but I can assure (counsel) and any other party that
in these proceedings there will be no finding of an allegation
involving criminal activity unless I am satisfied beyond all
reasonable doubt."
The applicants sought and obtained leave to issue judicial review
proceedings where similar submissions were made in the High Court.
These were also rejected by Mr. Justice Costello on 21 October 1991 who
held as follows on the Tribunal's functions :
"The functions of the Tribunal are to inquire, report and if
appropriate, to make recommendations. When reporting on
allegations of wrongdoing it expresses an opinion as to whether
the allegations are true or false, but this opinion is of no
legal effect. The Tribunal determines no legal rights ; it
imposes no legal obligations. It expresses conclusions for the
guidance of the legislature and the executive ...
The terms of reference in this case require the Tribunal to
inquire into the truth or falsity of a number of allegations of
wrongdoing including assertions that the criminal law has been
breached. But in inquiring into these allegations and in
reporting its opinion on them the Tribunal is not imposing any
liabilities or affecting any rights. It is not deciding any
controversy as to the existence of any legal right. It is not
making any determination of any rights or liabilities. It is not
imposing any penalties. It may come to the conclusion that some
or all the allegations of wrongdoing are true, but this opinion
is devoid of legal consequences. Its functions of inquiring,
reporting and recommending cannot therefore be regarded as the
'administration of justice'. The Tribunal is not exercising a
'judicial function' in the case of allegations of criminal
behaviour. It is not trying anyone on a criminal charge. In my
judgment parliament did not direct the establishment of a
Tribunal that is to exercise judicial functions ...
The same considerations apply in respect of disputes which may
exist at the time of the Tribunal appointment and which may later
become the subject of civil litigation. The holding of an
inquiry does not in any way prohibit a party to a dispute
referring it to the court's adjudication or prejudice its
consideration by the court ...
The obligation to adopt fair procedures may require the Tribunal
to take appropriate measures to ensure that its proceedings do
not constitute in practice an interference with the fair trial
of an accused arising, for example, from the publicity attendant
on the Tribunal's hearings. In this case the obligation to adopt
fair procedures has been amply recognised throughout the
Tribunal's deliberations and in the course of its communications
with the parties. On 10 October 1991 the Tribunal stated that
'if at any time it appears to me that there is the slightest
danger of any interference with the administration of justice I
will desist from dealing with the matter'."
The applicants appealed to the Supreme Court which upheld the
decision of the High Court in its entirety on 5 November 1991.
The allegations made against the applicants, and in particular
the proceedings of the Tribunal, have received significant media
attention.
B. The relevant domestic law
The Tribunal in the present case was established by way of the
administrative order of the Minister for Agriculture and Food on 31 May
1991. The Government or any Minister can inquire into matters of
public interest as part of the exercise of their executive powers. The
proceedings of the Tribunal are regulated by the Tribunals of Inquiry
(Evidence) Act 1921 and the Tribunals of Inquiry (Evidence) (Amendment)
Act 1979. Sections 4, 5 and 6 (1) of the latter legislation provide
as follows :
"4. A tribunal may make such orders as it considers necessary
for the purposes of its functions, and it shall have, in relation
to their making, all such powers, rights and privileges as are
vested in the High Court or a judge of that Court in respect of
the making of orders.
5. A statement or admission made by a person before a tribunal
or when being examined in pursuance of a commission or request
issued under subsection (1) of section 1 of the Principal Act
shall not be admissible as evidence against that person in any
criminal proceedings ...
6. Where a tribunal, or, if the tribunal consists of more than
one member, the chairman of the tribunal is of opinion that,
having regard to the findings of the tribunal and all other
relevant matters, there are sufficient reasons rendering it
equitable to do so, ... the chairman ... may by order direct that
the whole or part of the costs of any person appearing before the
tribunal by counsel or solicitor, as taxed by a Taxing Master of
the High Court, shall be paid to the person by any other person
named in the order."
The Supreme Court interpreted the latter provision in the
following manner :
"Section 6. The liability to pay costs cannot depend upon the
findings of the Tribunal as to the subject matter of the Inquiry.
When the Inquiry is in respect of a single disaster, then
ordinarily, any party permitted to be represented at the Inquiry
should have their costs paid out of public funds. The whole or
part of those costs may be disallowed by the Tribunal because of
the conduct of or on behalf of that party at, during or in
connection with the Inquiry. The expression 'the findings of the
Tribunal' should be read as the findings as to the conduct of the
parties at the Tribunal. In all other cases the allowance of
costs at public expense lies within the discretion of the
Tribunal, or, where appropriate, its chairman."
COMPLAINTS
1. The applicants complain that they are charged with criminal
offences to be determined by the Tribunal in the absence of a fair
trial as guaranteed by Article 6 para. 1 of the Convention, and that
they have not been afforded the presumption of innocence guaranteed by
Article 6 para. 2.
2. The applicants further complain that the Tribunal and the
attendant publicity have damaged their civil right to a good name and
reputation without any redress being available to them under Irish law,
in breach of the guarantees of Article 6 para. 1.
3. The applicants complain of damage to the commercial value of
their business by the Tribunal in violation of Article 1 of Protocol
No. 1 to the Convention.
4. The applicants allege that they have been singled out for
discriminatory treatment by their subjection to an inquiry as opposed
to a criminal trial, and that this is a breach of Article 6 read in
conjunction with Article 14 of the Convention.
5. In respect of all of the above complaints the applicants further
claim a breach of Article 13 of the Convention as, allegedly, there is
no effective domestic remedy.
THE LAW
1. The applicants complain that the Tribunal established by the
Minister for Agriculture and Food to inquire into the Irish beef
industry is, in effect, in the process of determining criminal charges
against them without affording them the guarantees of Article 6
paras. 1 and 2 (Art. 6-1, 6-2) of the Convention. They submit, inter
alia, that the criminal nature of the proceedings is reflected in the
power of the Tribunal under section 6 of the Tribunal and Inquiry
(Evidence) (Amendment) Act 1979 to inflict punishment upon them by way
of a costs order, and in the Tribunal's indication that it will base
its conclusions on the criminal standard of proof, namely, "beyond all
reasonable doubt".
Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention read
as follows :
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission must first consider whether Article 6 paras. 1 and
2 (Art. 6-1, 6-2) are applicable to the proceedings before the Tribunal
of Inquiry, i.e. it must ascertain whether there is any "criminal
charge" against the applicants to be determined by the Tribunal.
In deciding whether a "criminal charge" within the meaning of the
Convention is at issue in a particular case, the case-law of the
Convention organs requires, first, reference to the domestic law
involved with a view to ascertaining whether the legal system of the
respondent State classifies the "offence" as "criminal". The nature
of the "offence" and the degree of severity of the penalty that the
person concerned risks incurring must then be considered (cf. Eur.
Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22,
pp. 34-35, para. 82 ; Öztürk judgment of 21 February 1984, Series A
no. 73, p. 18, para. 50 ; Campbell and Fell judgment of 28 June 1984,
Series A no. 80, pp. 35-38, paras. 70-73 ; Weber judgment of 22 May
1990, Series A no. 177, pp. 17-18, paras. 31-34 ; and Demicoli judgment
of 27 August 1991, Series A no. 210, pp. 15-16, para. 31).
The applicants in the present case have been and are being
required to provide evidence and to be heard as witnesses in
proceedings initiated by the Irish Parliament to inquire into alleged
illegal practices in the beef processing industry. In domestic law no
offence and no formal penalty are involved.
The Commission recalls that it is possible for a person to be
"charged" within the meaning of Article 6 (Art. 6) of the Convention
even where domestic law sees no charge (cf. Eur. Court H.R., Deweer
judgment of 27 February 1980, Series A no. 35, p. 23, para. 44). In
the present case, however, the role of the Tribunal is to inquire, to
express an opinion and, if appropriate, to make recommendations for the
guidance of the legislature and the executive on improvements in the
lawful running of the beef industry. These are matters of wide general
public concern which, although closely involving the applicants'
activities and the truth or falsity of certain criminal allegations,
cannot be said to amount to a disguised form of criminal proceedings.
The Commission finds that there is no evidence that the
Tribunal's discretionary powers to order costs would be used as a
sanction approaching that of a criminal penalty (cf. p. 6 above).
Moreover the Tribunal has not stated that the burden of proof
throughout the proceedings will be that of a criminal trial, that of
"beyond all reasonable doubt". The Tribunal said that the onus of
proof to be applied would differ according to the nature of the
allegations under investigation. Moreover it has been at pains to
emphasise that it is not intending to interfere with the administration
of justice. If there would be the slightest danger of doing so the
Tribunal will desist from dealing with the matter (cf. p. 5 above).
The Commission finds therefore that the subject matter before and
proceedings of the Tribunal of Inquiry do not involve the determination
of a "criminal charge" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. Moreover the applicants cannot be said
to be "charged with a criminal offence" within the meaning of Article
6 para. 2 (Art. 6-2) of the Convention. It follows that this part of
the application is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicants next complain that the Tribunal, with its
attendant publicity, has irreparably damaged their good reputation,
with the result that they had no effective remedies before the civil
courts, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.
However, the Commission notes that the Tribunal has not yet
issued its report on the inquiry. It is therefore not possible to say
what conclusions might be reached involving the applicants' business
activities and whether those conclusions would have any damaging effect
on the applicants'reputation. If the applicants are essentially
complaining about the very fact that a public inquiry touching on their
business concerns is being held at all, the Commission is of the view
that no protection under Article 6 (Art. 6) of the Convention can be
derived in a democratic society to prevent the conduct of inquiries
into matters of major public importance as in the present case. The
Commission concludes therefore that at the present stage of the inquiry
in question there is no evidence to support the applicants' contention
that the actions of the Tribunal have in any way interfered with or
determined the applicants' "civil rights" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants allege that damage has been caused to the
commercial value of their business by the Tribunal, the full extent of
which is impossible to quantify at this stage, but which is sufficient
to establish that they are victims of a violation of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) reads as follows :
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
However the Commission finds no evidence in the case-file to
substantiate the applicants' claim. No evidence of any significant
economic prejudice due directly to the Tribunal proceedings has been
submitted. In the circumstances, therefore, the Commission finds that
no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) has
been disclosed in the present case. It follows that this aspect of the
case is also manifestly ill-founded, within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicants also complain that they are victims of
discrimination, having been singled out for the inquiry rather than
being prosecuted and tried before the criminal courts. They invoke
Article 14 of the Convention read in conjunction with Article 6
(Art. 14+6), the former reading as follows :
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
However, on the evidence before it, the Commission does not
consider that the applicants can be said to have been so victimised.
The Tribunal certainly took evidence at length as to the applicants'
activities. This was inevitable as the inquiry concerns the beef
processing industry of which the applicants make up 40 %, but it cannot
be classed as victimisation. Moreover the Commission has already held
above that the Tribunal's proceedings involve neither a disguised
determination of a criminal charge nor a determination of the
applicants' civil rights or obligations. Accordingly the Commission
finds no appearance of a violation of Article 14 of the Convention read
in conjunction with Article 6 (Art. 14+6).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. Finally the applicants allege that they have no effective remedy
at their disposal for their Convention claims, in breach of Article 13
(Art. 13) of the Convention which provides as follows :
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
However the Commission recalls that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of every alleged
violation of the Convention. It only applies if the individual can be
said to have an "arguable claim" of a violation of the Convention (Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No. 131,
p. 23, para. 52).
In light of its conclusions above, the Commission finds that the
applicants cannot be said to have an "arguable claim" of a violation
of their Convention rights.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy