AS TO THE ADMISSIBILITY OF
Application No. 16221/90
by Colm McKENNA
against Ireland
The European Commission of Human Rights sitting in private
on 17 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 December 1989
by Colm McKenna against Ireland and registered on 27 February 1990
under file No. 16221/90;
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 applicant is an Irish citizen born in 1962 and resident in
County Donegal. He is represented by Messrs. James P. Sweeney & Co.,
solicitors practising in County Donegal. The facts as submitted by the
applicant may be summarised as follows.
Pursuant to the 1956 Gambling and Lotteries Act, the Donegal
County Council (hereinafter the "Council") operated a system of
licensing of gambling arcades. The applicant operated gambling
arcades under licence since 1980.
On 19 January 1986, Donegal County Council held a special
meeting to consider the motion proposed by a councillor that Donegal
County Council, pursuant to Section 13 of the 1956 Act, rescind the
adoption of Part III of the Act in respect of the whole administrative
area of the said council. There had been previous unsuccessful
motions to this effect, a number of councillors and pressure groups
having campaigned against gaming.
The minutes of the meeting record that the proposer of the motion
gave as a reason for the rescission the evils of gaming machines and the
distress that they were causing among families in the poorer section of
the community. At the conclusion of the meeting the motion was adopted.
In a case McEniff v. Donegal County Council (No. 2034 of 1987)
an action was pursued challenging the validity of the resolution on
the ground that there had not been proper notice of the meeting.
Following a hearing on 7 March 1989, Mr Justice Egan dismissed the
claim finding that the proper procedure had been followed. On
17 November 1989, the Supreme Court struck off the appeal against this
decision for want of prosecution. Following these decisions, the
Circuit Court judge of the region on 23 and 28 November 1989 dismissed
all appeals (including the applicant's) against the refusal to grant
further licences, stating that he was bound by the Supreme Court decision.
Relevant domestic law and practice
The Gaming and Lotteries Act 1956 provides in Part III for
the licensing of amusement halls and funfairs.
Section 13 provides as follows:
"A local authority may by resolution adopt this Part in
respect of the whole or a specified part of its administrative area
and may by resolution rescind such adoption."
COMPLAINTS
The applicant complains that as a result of the revocation of
his licence he will lose his livelihood and his property rights over
his machines and buildings.
He complains that other forms of gambling are still legal and
that there is no provision of compensation or means of redress. He
invokes Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant complains that the revocation of his licence to
operate his gambling arcades deprives him of his livelihood and
interferes with his property rights contrary to Article 1 of Protocol
No. 1 (P1-1) to the Convention, which provides:
"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."
The Commission notes that the applicant has not instituted
proceedings in the High Court challenging the constitutionality of the
provision of the 1956 Act which he complains deprived him of his
livelihood. The Commission finds it unnecessary to decide however
whether he has in fact exhausted remedies as required by Article 26
(Art. 26) of the Convention for the reasons set out below.
The Commission has considered whether the licence to operate a
gambling arcade can give a licence-holder a right which is protected
under Article 1 of the First Protocol (P1-1). The Commission finds that the
economic interests connected with the applicant's gambling business
were "possessions" within the meaning of the above provision. The
rescission of the resolution allowing licences of amusement arcades
prohibited the continuation of the applicant's business and in the
circumstances constituted an interference with his rights under
Article 1 of Protocol No. 1 (P1-1) (see e.g. Eur. Court H.R., Van
Marle and Others judgment of 26 June 1986, Series A no. 101, p. 13,
paras. 41-42).
The Commission has therefore considered whether the revocation
was justified under the second paragraph of this provision as a
control of the use of property in accordance with the general
interest, which requires an examination of the lawfulness and purpose
of the interference and of its proportionality (see e.g. Eur. Court
H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 139, p.
22-24, paras. 56-62).
The Commission notes that the rescission was based on Section
13 of the 1956 Act and that it was motivated by the interests of the
community. It therefore is satisfied that it was a measure in
accordance with law which pursued the general interest. On the question
of proportionality, the Commission notes that the applicant's licence
to operate his business had always been subject to the local
authority's unfettered power to revoke its resolution allowing the
licensing of amusement arcades. The applicant must also have been
aware that part of public opinion had been adverse to the continuation
of these types of businesses in the area and that individual
councillors and pressure groups had campaigned for rescission under
Section 13.
In view of the wide discretion enjoyed by States in this area,
the Commission finds in the circumstances of this case that the
removal of the applicant's licence was justified under the second
paragraph of Article 1 of Protocol No. 1 (P1-1).
It follows that the application is 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 Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
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