Ó'FAOLAIN v. IRELAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 29099/95

                      by Mícheál Ó'FAOLAIN

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 12 July 1995 by

Mícheál Ó'FAOLAIN against Ireland and registered on 8 November 1995

under file No. 29099/95;

     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 as submitted by the applicant may be summarised as

follows. The applicant is an Irish citizen, was born in 1950 and is

resident in Co. Westmeath, Ireland.

Particular circumstances of the case

     On 30 November 1994 a member ("a T.D.") of the Dáil (the lower

house of the legislature) accused a former Minister for Education of

colluding in irregularities in the running of Westmeath Vocational

Educational Committee ("VEC") and of later covering up relevant

evidence. The T.D. continued and his comments were reported in the

press as follows:

     "... said he knew of a close political ally of      former Minister for Education> who was appointed to a position

     funded by the EU Petra Programme. Questions had been raised about

     the effectiveness of the programme, ... . It was a "gross waste"

     which could not be countenanced. ... When it came up for

     discussion at a meeting of Westmeath VEC however, one Fianna Fáil

     member asked why there

     were so many questions - the money, this member said, had all

     come from Europe. The funding for the project ended in 1993, but

     the petty cash account of the VEC dealing with it was in deficit

     for £900,000.00. It was beyond credibility that there should be

     such a huge deficit and that a petty cash account should be used

     to pay salaries."

     It was also reported that the acting Minister for Education

responded to the T.D. by stating that the individuals involved would

be first given an opportunity to see a forthcoming report on the matter

after which he was anxious to have the issues debated in the Dáil.

     On 1 December 1994 an Inspector in the Department of Education

mentioned to the applicant in a jocular fashion that he had been

referred to in the Dáil the previous day. On 10 December 1994, having

seen the relevant newspaper report and since the applicant felt that

he had been defamed because of his involvement in the programme

referred to in the T.D.'s statement, the applicant wrote to the

Chairman of the Dáil Committee on Procedure and Privileges ("the

Committee") complaining about the T.D.'s statement. In December 1994

the Chairman responded to the applicant in writing referring to the

privilege attaching, inter alia, to utterances in the Dáil and that the

T.D. was thus not in breach of Dáil privilege when he made the remarks.

     On 27 January 1995 the Clerk of the Committee wrote to the

applicant referring to his letter of 10 December 1994 confirming that

his grievances had been put before the Committee on 26 January 1995,

that a decision had been made to set up a sub-committee to examine the

area of members' privilege and that the applicant's complaints would

be also considered by that sub-committee. By letter dated 6 April 1995

the Clerk of the Committee informed the applicant that the Committee

had now proposed a formal procedure for dealing with alleged abuses of

members' privilege which proposal was to be put before the Dáil but

that the proposed scheme was only to be implemented in respect of any

future complaints.

     The applicant and his solicitor also wrote to the T.D. in

question asking him to retract or to repeat the relevant statement

outside the Dáil. The correspondence was acknowledged by the T.D.

     The programme, the subject of the T.D.'s comments, has ended. The

applicant is due to return to his former teaching post. He  claims that

the T.D.'s remarks have been mentioned to him on numerous occasions

since then including during an interview for a job.

Relevant domestic law and practice

     Article 15.10 of the Constitution states that each house of the

Oireachtas (the legislature - of which the Dáil is one house) shall

have the power to ensure freedom of debate. Article 15.12 provides that

all official reports and publications of the Oireachtas or of either

house thereof and utterances made in either house wherever published

shall be privileged. Article 15.13 goes on to provide that:

     "The members of each house of the Oireachtas ... shall not,

     in respect of any utterance in either House, be amenable to

     any court or any authority other than the House itself."

     After each general election various T.D.s are appointed to the

Committee on Procedure and Privileges which committee considers matters

of procedure generally, recommends any necessary changes to the

Standing Orders and considers and reports, as and when requested to do

so, on the privileges attaching to T.D.s.

COMPLAINTS

     The applicant complains that statements were made by a T.D. in

the Dáil which, upon any reasonable construction, referred to him in

such a way as to defame him personally and professionally and that,

because of the immunity provided by Article 15.13 of the Constitution,

he has no recourse to the courts to obtain compensation. He invokes

Articles 6, 8, 14, 17 and Article 1 of Protocol 1.

THE LAW

     The applicant raises a number of complaints in relation to

statements made by a T.D. to which an immunity attaches pursuant to the

relevant provisions of Article 15 of the Irish Constitution. The

Commission finds that it is not necessary to determine whether the

applicant's recourse to the Committee on Procedure and Privileges

interrupted the running of the six month period referred to in Article

26 (Art. 26) of the Convention because the application is, in any

event, inadmissible for the reasons set out below.

1.   The Commission has first considered the applicant's complaint,

as regards the immunity attaching to the T.D. in relation to his

statement in the Dáil, under Articles 6 and 8 (Art. 6, 8) of the

Convention. The relevant parts of these Articles read as follows:

Article 6  (Art. 6-1) "1. In the determination of his civil rights ...

           , everyone is entitled to a fair and public hearing ... by

           an independent and impartial tribunal established by law.

           ..."

Article 8  (Art. 8-1) "1. Everyone has the right to respect for his

           private ... life, ...

           2.  There shall be no interference by a public authority

           with the exercise of this right except such as is in

           accordance with the law and is necessary in a democratic

           society in the interests of ..., the economic well being of

           the country, ..., or for the protection of the rights and

           freedoms of others."

     The Commission recalls that it previously rejected a complaint

under Article 6 para. 1 (Art. 6-1) of the Convention that there had

been a failure to determine civil rights by reason of parliamentary

immunity (No. 3374/67 Collection of Decisions 29, p. 29). In that case,

the Commission considered that Article 6 para. 1 (Art. 6-1) of the

Convention was to be interpreted subject to the traditional recognition

by Contracting States of that immunity. Subsequently, the Commission's

Report in the Golder case (No. 4451/70, Comm. Report 1.6.73, p. 44

para. 93) clarified that parliamentary immunity involves a lack of

access to the defendant rather than to court and that the right of

access to court, contained in Article 6 para. 1 (Art. 6-1) of the

Convention, does not require unlimited jurisdiction.

     More recently the Court has had occasion to consider the concept

of privilege in its Fayed judgment (Eur. Court H.R., Fayed judgment of

21 September 1994, Series A no. 294-B) and the Commission considers it

appropriate to follow the approach of the Court in that case for the

purposes of the present application.

     Accordingly, the Commission does not consider it necessary to

determine, in the circumstances of this case, the precise nature of the

immunity accorded by Article 15 of the Irish Constitution - namely,

whether it is of a procedural nature removing the jurisdiction of the

courts and thus within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention or whether it is of a substantive nature limiting the extent

of a civil right and thus more properly considered within the scope of

Article 8 (Art. 8) of the Convention - because the same central issues

of legitimate aim and proportionality are posed by these two complaints

(Eur. Court H.R., Fayed judgment, loc. cit., pp. 49-51, paras. 65-68).

     The Commission has therefore considered the legitimacy of the

aims pursued by the relevant provisions of Article 15 of the Irish

Constitution together with the proportionality between the means

employed and those aims in determining the applicant's complaints under

Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention about an

attack on his reputation for which he had no recourse to the courts.

     The underlying aim of the immunity accorded to T.D.s is clearly

in furtherance of the public interest to allow T.D.s to engage in

meaningful debate and represent their constituents on matters of public

interest (in the present case use of public funds and public

appointments) without having to restrict their observations or edit

their opinions because of the danger of being amenable to a court or

other such authority.

     Turning to whether the immunity was proportional in the

circumstances of the present case the Commission recalls, in the first

place, that in the above-mentioned Fayed judgment the Court did not

find it decisive even if the relevant privilege was to be considered

as absolute (Fayed judgment, loc. cit., p. 53, para. 77).

     The Commission notes that the impugned statement did not mention

the applicant by name and that the thrust of the T.D.'s remarks was

aimed at the actions of a former Minister for Education rather than the

applicant. The Commission considers it difficult to conceive of a

manner in which a T.D. could challenge the making of certain public

appointments by Ministers or the use of public funds without at least

indirectly referring to the person so appointed, to persons who appear

to have been responsible for those funds or to persons involved in the

relevant funded project. Having found the aim of free debate in the

public interest legitimate, it is not open to the Commission to apply

the test of proportionality in such a manner as to render meaningful

debate impracticable (Fayed judgment, loc. cit., p. 55, para. 81). In

addition, the Commission notes the restrained response of the Minister

for Education in reply to the T.D.'s statement.

     In such circumstances the Commission considers that a reasonable

relationship of proportionality could be said to exist between the

immunity accorded to T.D.s in relation to statements made in parliament

and the legitimate aim of free debate pursued in the public interest.

     Accordingly, the Commission concludes that the applicant's

complaints under Articles 6 and 8 (Art. 6, 8) of the Convention are

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant also invokes Article 1 of Protocol 1 (P1-1) and

even assuming that the applicant's complaints fall within the scope of

this Article the Commission has found as follows. Insofar as the

applicant complains in this context about an attack made on his

professional reputation without his having any recourse to the courts

because of the immunity attaching to the T.D.'s comments, the

Commission considers that this complaint does not give rise to any

issue separate to those dealt with under Articles 6 and 8

(Art. 6, 8) of the Convention. Insofar as the applicant's complaint

under Article 1 of Protocol 1 (P1-1) relates to the consequent negative

impact of the T.D.'s statement on his subsequent career and earnings,

the Commission considers any such complaint unsubstantiated. In

particular, the Commission notes that the project the applicant had

been working on at the time of the relevant debate has ended and

considers that the applicant has not demonstrated that the project

terminated because of the T.D.'s remarks. In addition, the Commission

notes that the applicant is to resume his prior teaching position.

     The Commission therefore concludes that the applicant's

complaints under Article 1 of Protocol 1 (P1-1) are manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   The applicant also invokes Article 14 (Art. 14) of the Convention

in respect of the immunity attaching to T.D.s in relation to their Dáil

statements, which Article, insofar as relevant, reads as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as ...  political or other opinion, ... property or other

     status."

     The Commission recalls that this Article protects individuals in

analogous situations from a discriminatory difference in the exercise

of the rights and freedoms recognised by the Convention and its

Protocols. Article 14 (Art. 14) has, therefore no independent existence

and the Commission has accordingly considered this complaint of the

applicant in conjunction with Articles 6 and 8 (Art. 6, 8) of the

Convention, into the scope of which Articles a complaint, relating to

an inability to take proceedings in respect of an allegedly defamatory

statement, can be said to fall.

     However, such a difference in treatment will only be

discriminatory within the meaning of Article 14 (Art. 14) of the

Convention if the difference in treatment relates to personal status,

has "no objective and reasonable justification" namely, if it does not

pursue a "legitimate aim" and if there is no "reasonable relationship

of proportionality between the means employed and the aim sought to be

realised" (see, for example, Eur. Court H.R., Darby judgment of 23

October 1990, Series A no. 187, p. 12, para. 31). Furthermore, the

Contracting States enjoy a certain margin of appreciation in assessing

whether and to what extent differences in otherwise similar situations

justify a different treatment in law; the scope of this margin will

vary according to the circumstances, the subject matter and the

background (Eur. Court H.R., Lithgow judgment of 8 July 1986, Series

A no. 102, pp. 66-67, para. 177).

     The Commission considers that a difference in treatment arises

in that those who are the subject of allegedly defamatory comment by

a T.D while in the Dáil cannot pursue the T.D through the courts as a

consequence of the relevant provisions of Article 15 of the Irish

Constitution whereas those challenging statements made outside of that

context can take civil proceedings in defamation. However and insofar

as this involves a difference in treatment based on personal status,

in view of the conclusions of the Commission above in relation to the

applicant's complaints under Articles 6 and 8 (Art. 6, 8) and having

regard to the margin of appreciation enjoyed by the Contracting States

in this area, the Commission considers that this difference in

treatment is not discriminatory within the meaning of Article 14

(Art. 14) of the Convention.

     Accordingly, the Commission finds this complaint manifestly ill-

founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

4.   Finally, the applicant invokes Article 17 (Art. 17) of the

Convention. However, the Commission does not find that the applicant

has demonstrated in any way that the retention of the relevant immunity

in the Irish Constitution was aimed at the destruction of any of the

Convention rights or limited them to a greater degree than is

permissible under the Convention (No.9285/81, Dec. 6.7.82, D.R. 29 p.

212). Accordingly, the Commission finds this aspect of the application

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

   (M.F. BUQUICCHIO)                            (C.L. ROZAKIS)

 

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