THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47898/99
by Joseph McPARLAND
against the United Kingdom
The European Court of Human Rights (Third Section) sitting on 30 November 1999 as a Chamber composed of
MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrsF. Tulkens,
MrK. Jungwiert,
MrsH.S. Greve, judges,
andMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 February 1999 by Joseph McParland against the United Kingdom and registered on 4 May 1999 under file no. 47898/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1946 and living in Newry, Northern Ireland. He is represented before the Court by Mr Gerard Trainor of the Elliot-Trainor Partnership, a firm of solicitors based in Newry.
A.Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 April 1998 the Transport Licensing and Enforcement Branch of the Department of the Environment of Northern Ireland (“the Department”) notified the applicant in writing that his application for a road service licence had been refused on the ground that he was not considered to be of “good repute” within the meaning of sections 28A(1)(a) and 46A(3A)(a) of the Transport Act (Northern Ireland) 1967 as amended. The Department’s refusal was based on the fact that the applicant was convicted on 1 June 1990 of possessing explosives, firearms and ammunition and sentenced to ten years’ imprisonment. The applicant was released on 7 March 1995.
Following a hearing held on 19 May 1998 before the Vehicle Licensing Review Body (“the Review Body”), the Department informed the applicant in June 1998 that it had accepted the Review Body’s recommendation and had decided to uphold its decision of 3 April 1998.
The applicant’s solicitor requested the Department to provide reasons for the Review Body’s decision. By letter dated 7 August 1998, the Department informed the applicant that the Review Body had met on 19 May 1998 to hear his appeal and had taken into account all the information before it, including the character references which the applicant had supplied. It was the Review Body’s unanimous recommendation that the Department’s initial decision be upheld. The Department drew the applicant’s attention to the fact that the Review Body was an independent institution which did not have any power to take decisions on appeals from its licensing authority. The Review Body’s functions were limited to making recommendations for consideration by the Department. The Department took a final decision on the applicant’s application in which it affirmed its licensing authority’s earlier decision to refuse him an operator’s licence on the grounds specified in its letter of 3 April 1998.
The applicant subsequently sought leave to apply for judicial review of the Department’s decision on the grounds inter alia that the decision refusing him a licence was discriminatory, unreasonable, unfair and unlawful; that the licensing authority had given undue emphasis to his criminal conviction; and that the same authority had failed to take into account relevant matters such as the character references he had submitted, his qualifications and the fact that official and private agencies had earmarked funding for the business venture which he was attempting to mount. The applicant also prayed in aid the provisions on the rehabilitation of offenders following their release from prison.
On 25 September 1998 the applicant’s lawyer informed the High Court of Northern Ireland that the applicant no longer wished to proceed with the leave application. Mr Justice Kerr accordingly dismissed the application. According to the applicant, Mr Justice Kerr stated at the leave hearing that the licensing authorities confronted as they were with the applicant’s previous conviction and the terms of the relevant domestic legislation could not have reached a different conclusion.
B.Relevant domestic law
Section 28 of the Transport Act (Northern Ireland) 1967 was amended by regulation 4 of the Road Transport (Qualifications of Operators) Regulations (Northern Ireland) 1977 so as to provide that the Department of the Environment shall refuse to grant to an applicant an operator’s licence unless it is satisfied that the applicant is, inter alia, of good repute (new section 28A).
The Transport Act (Northern Ireland) 1967 was further amended by the Road Transport (Qualifications of Operators) (Amendment) Regulations (Northern Ireland) 1991. According to section 5(2) of the Regulations, the Department shall determine that a person is not of good repute if he has been convicted of serious offences, defined as any offence which carries a sentence of imprisonment for a term exceeding three months, a fine exceeding level 4 on the standard scale, or a community service order for more than 60 hours. Spent convictions are to be disregarded.
A person who has been refused a licence may apply in writing within fourteen days from the date of issue of the notice of refusal to the Department of the Environment stating his grounds of complaint and requiring the decision to be reviewed by the Department. The Department must inform the applicant in writing whether the decision has been confirmed or reversed. The Department must give reasons for the confirmation of a decision (regulation 5 of the Road Service Licensing Regulations (Northern Ireland) 1989).
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair and public hearing in the determination of his civil right to engage in a commercial activity. He maintains in this connection that neither the Department of the Environment, which took the original decision to refuse him a licence, nor the Review Board, which recommended that that decision be upheld, satisfy the requirements of Article 6, and that there is no possibility to challenge the impugned decision before a body which complies with these requirements.
Further, and in the alternative, the applicant complains that the decision at issue interferes with his right to the peaceful enjoyment of his possessions in breach of Article 1 of Protocol No. 1 to the Convention. He contends that he is prevented from using the buses in which he has invested to operate a bus service.
The applicant also maintains that the decision to refuse him a licence amounts to the imposition of an additional criminal penalty and on that account he should have been guaranteed the procedural guarantees set out in Article 6 of the Convention.
Finally, the applicant asserts that he is denied an effective remedy in respect of the above Convention grievances. He invokes Article 13 of the Convention.
THE LAW
1.The applicant complains that he did not receive a fair and public hearing on his application to obtain a Road Service Licence. He invokes Article 6 of the Convention which provides in relevant part:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... .”
The Court must first examine whether Article 6 § 1 of the Convention was applicable to the disagreement between the applicant and the Department over his entitlement to the grant of a Road Service Licence. It recalls in this connection that, according to the principles laid down in its case-law (see, for instance, the judgments of Anne-Marie-Andersson v. Sweden, 27 August 1997, Reports of Judgments and Decisions 1997-IV, p. 1416, § 33; Zander v. Sweden, 25 November 1993, Series A no. 279-B, p. 38, § 22; and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32), it must be ascertained whether there was a dispute (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. Furthermore, the outcome of the proceedings must be directly decisive for the right in question. Finally, the right must be civil in character.
It is to be observed that section 46 of the Transport Act (Northern Ireland) 1967 was amended by the Road Transport (Qualification of Operators) (Amendment) Regulations (Northern Ireland) 1991 in order to exclude any discretion which the Department’s licensing authority may previously have had to issue a licence to an applicant who has been convicted of serious offences. Under the amendment, the notion of a serious offence has been defined and it is clear that the offences of which the applicant was convicted fall within the definition. Although spent convictions are excluded, the applicant’s offences can never become spent under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978.
The Department’s licensing authority was accordingly bound to refuse the applicant’s application and the Court interprets the High Court judge’s dismissal of the leave application for judicial review in this light.
Having regard to the foregoing, the Court concludes that Article 6 § 1 is not applicable in the particular circumstances of this case and the applicant’s complaint is therefore inadmissible ratione materiae. The Court would observe that in any event the applicant did have a hearing before the High Court of Northern Ireland on the lawfulness of the Department’s decision to refuse him a licence. It would have been open to that court to quash the impugned decision had it found it to be ultra vires. However, the applicant discontinued the proceedings when he was apprised of the judge’s view that he did not comply with the conditions in the relevant legislation for the grant of a licence. The judge subsequently dismissed the applicant’s leave application. In the Court’s opinion, the outcome of the leave proceedings was tantamount to an adjudication on the applicant’s non-entitlement to a licence given in proceedings which fully complied with Article 6 § 1 of the Convention.
The Court also dismisses the applicant’s submission that the refusal of his application amounted to the imposition of a criminal sanction and he should therefore have been afforded the procedural guarantees guaranteed under Article 6 to persons facing a criminal charge. The Court observes that the impugned proceedings took the form of a licensing procedure. At no stage did they did involve the determination of a charge within the meaning of Article 6 § 1 of the Convention. This conclusion is not affected by the fact that the applicant’s request for a Road Service Licence foundered on the basis of his previous criminal convictions.
2.The applicant further complains that he was denied an effective remedy in breach of Article 13 of the Convention, which provides:
“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.”
The Court recalls that Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 (see, for instance, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). However, this provision applies only in respect of grievances under the Convention which are arguable (see, for instance, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
Having regard to its conclusion on the applicant’s Article 6 complaint, the Court finds that his complaint under this head is not arguable and is therefore manifestly ill-founded within the meaning of Article 35 § 3. Accordingly it must be rejected in accordance with Article 35 § 4 of the Convention.
3. The applicant invokes Article 1 of Protocol No. 1 to the Convention, which states as relevant:
“Every natural ... person is entitled to the peaceful enjoyment of his possessions.”
The applicant refers to the investment which he has made in anticipation of the grant of a Road Service Licence.
The Court observes that the applicant’s inability to engage in a commercial activity and realise the profits of his investments stems from the fact that he cannot fulfil the statutory conditions for the grant of a Road Service Licence. He had no reasonable expectation of securing a licence, the essential prerequisite of setting up business. In the circumstances his complaint under this head is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
.
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy