AS TO THE ADMISSIBILITY OF
Application No. 9373/81
by E.V.
against Ireland
The European Commission of Human Rights sitting in private
on 14 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
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 19 November 1981
by Mrs. E.V. against Ireland and registered
on 18 May 1981 under file N° 9373/81;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mrs. E.V., is a citizen of Ireland at
present residing in Dublin. At the time the application was
introduced she was represented in the proceedings before the
Commission by Mr. Norman Spendlove, Solicitor, Dublin. It appears that
he ceased to act as solicitor for the applicant sometime during 1984.
The facts as agreed by the parties may be summarised as
follows:
In 1952 the applicant married Mr. J.V. in a Roman
Catholic church in the County of Dublin. She had two children from
this marriage, born in 1954 and 1963 respectively, as well as two
adopted children.
The applicant alleges that in July 1967 she was forced by
various acts of cruelty on the part of Mr. V. to leave the
matrimonial home with all of the children in her care. Since that
date the applicant and her husband have lived apart. Her husband
continues to reside in the matrimonial home at B.
In 1975 the applicant's husband obtained a canonical decree of
annulment of his marriage with the applicant from a marriage tribunal
of the Roman Catholic Church. She states that this decree of
annulment is not recognised under Irish law and accordingly the
marriage between the applicant and J.V. is still valid and
subsisting. Notwithstanding, it is claimed that the applicant's
husband went through a form of marriage with Miss B at a Roman
Catholic church in Dublin. Mr. V. and Miss B lived together as man
and wife in the former matrimonial home in B. They had two
children. The applicant states that since the marriage had no
validity in Irish law, owing to the lack of capacity of Mr. V. to
marry, it was bigamous.
The applicant states that she believed that the purported
second marriage of her husband threatened her own position and that of
her children with regard to her property rights in the matrimonial
home, to her own and her children's rights to her husband's estate
under the Succession Act 1965 and to her own and her children's rights
to maintenance. Accordingly, she complained to the police with a view
to having her husband prosecuted for the offence of bigamy. The
applicant was informed in 1978 by the Director of Public Prosecutions
(DPP) that in accordance with his powers under the Prosecution of
Offences Act 1974 he had decided not to institute any prosecution
against Mr. V.. She claims that the DPP has publicly stated in a
press interview that it is his policy not to prosecute for the offence
of bigamy those whose marriages have been annulled by the Roman
Catholic Church.
In July 1984 the applicant, who was legally represented,
sought to bring a private prosecution against her husband for the
offence of bigamy. Under this procedure a preliminary examination of
the evidence takes place before the District Court in order to
determine whether the accused should be returned for trial. It
appears that these proceedings did not result in her husband being
returned for trial.
In the meantime the applicant petitioned on 19 October 1972
for a divorce a mensa et thoro (judicial separation). She did not
however pursue these proceedings. The applicant also issued
proceedings between September 1973 and March 1977 under the Married
Women's Status Act 1957 concerning ownership of the matrimonial home
and under the Family Law (Maintenance of Spouses and Children) Act
1976 to determine her rights to property and maintenance. Maintenance
orders were made by the High Court in respect of herself and her
children on 7 March 1977 and 23 July 1980. The High Court further
decided on 7 March 1977 that she had not shown any beneficial interest
in the matrimonial home.
COMPLAINTS
Article 8 of the Convention
The applicant points out that in accordance with Article
41.3.2 of the Irish Constitution legislation providing for divorce
is constitutionally prohibited. She complains generally under Article
8 of the Convention that the State has failed to protect the rights of
her family. In particular she complains:-
(1) that the DPP has not instituted any proceedings against
her husband for bigamy. She alleges that there is a
deliberate policy of not prosecuting those who have entered
into second marriages following the obtaining of an
annulment from a Catholic marriage tribunal. The
consequence has been to "legitimise" the second marriage
relationship without providing any procedure for terminating
the first. Her status as a wife has thus been undermined in
a manner which fails to respect her private and family life;
(2) that the State has not provided adequate protection of
her property and succession rights. She claims that had she
been able to institute divorce proceedings she could have
sought adequate provision for herself and her children by
way, for example, of a lump sum settlement. She complains,
in particular, that her husband transferred assets to Miss B
with the consequence that her inheritance rights were being
eroded. Under Section 111 of the Succession Act where the
married person dies testate, despite any other provisions of
the will, the spouse has a right to one third of the estate;
(3) that she is unable to seek a dissolution of her
marriage.
Article 13 of the Convention
The applicant complains that the effect of the tolerance by
the authorities of her husband's allegedly bigamous marriage, and the
absence of any provision for divorce means that she has no effective
remedy for the violation of her right to respect for her private and
family life and her home.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 November 1980 and
registered on 18 May 1981. The Commission first examined the
application on 3 March 1982 and decided to communicate it to the
respondent Government for observations on admissibility and merits.
These observations were submitted by the respondent Government on
7 July 1982. The applicant's observations in reply were submitted on
6 September 1982.
The Commission next considered the application on 2 March 1983
and decided that it should be adjourned pending the outcome of the
proceedings in Johnston et al v. Ireland (No. 9697/82) - a case
raising similar issues which was then pending before the Commission and
which was subsequently referred to the European Court of Human Rights
(cf. Eur. Court H.R., Johnston and Others judgment of 18 December
1986, Series A no. 112).
On 8 March 1986 the Commission considered a request by the
applicant that her case be examined and decided to continue the
adjournment of the case pending the decision of the Court in the
Johnston case.
Following the judgment of the Court in the Johnston case there
was further correspondence with the applicant in person in order to
ascertain developments in her case which had occurred pending the
adjournment of the application.
SUBMISSIONS OF THE PARTIES
The Government
As to Fact
On 5 October 1977 the applicant wrote to the DPP informing him
that she wished her husband and Miss B to be charged with having
married bigamously on 12 March 1977. Following a full investigation
of the applicant's allegations by the Gardaí (police force) in the
course of which it emerged that there was no record of the
registration of a marriage between her husband and Miss B, the DPP
informed the applicant that the evidence did not warrant any
prosecution. In subsequent correspondence he pointed out that he
would not direct the prosecution in any case unless there existed
evidence which would be admissible in court that a criminal offence
had taken place. The decision not to prosecute on foot of the
applicant's complaint was taken totally in accord with the rule of
practice in the office of the DPP never to prosecute unless there is
available to the prosecution evidence that a crime has been committed
and that the proposed defendant is guilty of it.
The suggestion that newspaper reports together with evidence
from the applicant and her associates would suffice to prove that
Mr. V. was guilty of bigamy is not correct. Newspaper reports would
not be admissible under Irish law and the applicant would not be
regarded as a competent witness against her husband under the Irish
law of evidence. As to Mr. V. and Miss B they could not be
compelled to give evidence which, of its nature, would tend to
incriminate and if called as witnesses they would be given a warning
to this effect by the presiding judge.
The Government deny that it is State policy not to prosecute
in cases of bigamy involving annulments by the Roman Catholic Church.
At no time has a definite policy on the matter been formulated or
implemented. The case of the applicant is the only case involving an
ecclesiastical annulment which has been submitted to the DPP for
the consideration of bigamy proceedings since the establishment of his
office in 1975. There have been prosecutions for bigamy in the past
and in the appropriate case a prosecution would be brought in the
future.
The Government state that under Irish law any person can
institute a criminal prosecution. In summary proceedings such a
person can prosecute to finality. In the case of indictable offences
not being dealt with summarily, a private prosecutor can maintain the
proceedings through a preliminary examination in the District Court
up to the point where a decision is taken as to whether the accused
will be returned for trial. In the event of return for trial, the DPP
becomes dominus litis (State (Ennis) v. Farrell 1966 I.R. 107.).
As to Admissibility
It is submitted inter alia that the application should be
rejected as incompatible ratione materiae with the provisions of the
Convention. In particular:
1. The Convention does not guarantee the right to have criminal
proceedings instituted notwithstanding an assessment by the
prosecuting authorities that the available evidence does not warrant a
prosecution.
2. The Convention does not guarantee a right for a wife whose
marriage relationship has broken down to prevent her husband from
disposing of his property during his lifetime in order that she
may inherit more on his death.
As to the Merits
Article 8 of the Convention
The Government submit that there cannot be an interference
with the right to respect for private and family life under Article 8
of the Convention where the State, in the absence of provision for the
dissolution of marriage, gives no legal effect to church annulments.
Provision exists under Irish law for decrees of annulment to be made
by the ordinary courts of the State. If the Government were to
relinquish its obligations in the area of the law of nullity to
religious bodies, such legislation might be contrary to the Irish
Constitution and perhaps a violation of the Convention.
Article 8 of the Convention does not require a State to
provide for the dissolution of marriage. In 1950 when the Convention
was adopted, Irish constitutional provisions on the subject were in
existence for over a decade and neither the travaux préparatoires nor
the subsequent case-law under the Convention lend any support to the
view that the relevant provision of the Constitution was incompatible
with the Convention.
The Government further submit that the State has taken
positive steps to protect the property and succession rights of a
legal spouse when the marriage relationship breaks down. In this
regard, reference is made inter alia to Section 12 of the Married
Women's Status Act 1957 relating to the determination of ancillary
questions concerning property; Section 11 of the Guardianship of
Infants Act (1964) relating to the court's power to give directions
about the rights of custody, access and maintenance in respect of
infants; Sections 56, 111, 112, 117, 120 and 121 of the Succession Act
1965 dealing with the right of the surviving spouse to require a
dwelling to be appropriated; the legal rights of a testator's spouse
and the power of a court to make provision for a testator's children;
Section 5 of the Family Law (Maintenance for Spouse and Children) Act
1976 relating to maintenance orders; Section 18 of the Court's Act
1971 relating to maintenance payments to deserted wives.
The fact that Mr. V. may have purported to contract a second
marriage, the validity of which is not recognised by the law of
Ireland, is not relevant to the applicant's property and succession
rights which are exactly the same as if Mr. V. had simply formed a
new relationship without purporting to contract any new marriage.
Article 13 of the Convention
The Government state that the applicant has the following
effective remedies under Irish law in respect of her claim that her
right to respect for her private and family life and her home have
been violated:
1. The applicant could bring a private prosecution for bigamy
against her husband.
2. The applicant has specific remedies at her disposal under
present family law legislation as referred to above.
3. It would be open to the applicant to seek a declaration under
Articles 40 or 41 of the Constitution that her fundamental rights have
been violated. Apart from the unenumerated rights guaranteed by the
Irish constitution, the rights to good name and property and the
institution of marriage are specifically protected.
The Applicant
As to Fact
Although the applicant has not had access to the file prepared
in the DPP's office on her case, she was told on a number of occasions
by the police in charge of the investigation that they were quite
satisfied at the time that there was sufficient evidence for a
prosecution.
The applicant refers to an interview given by the DPP in the
Irish Press on 2 July 1979 which reveals a policy approach of non-
prosecution for bigamy of a person who has gone through a ceremony of
marriage following a Catholic church annulment. She does not accept
that the DPP's remarks were misreported. Frequent reference had been
made to that aspect of the interview susbsequently and at no stage did
he issue a public retraction or clarification of the statements
attributed to him in the interview. Moreover, the statement of policy
contained therein appears to be fully borne out in practice, as the
applicant is unaware of any prosecution for bigamy of a person who has
gone through a second marriage ceremony following a church annulment,
despite widespread public knowledge that a number of such marriages
take place in Ireland each year.
As to Admissibility
The applicant now seeks the legal remedy of a divorce a
vinculo matrimonii in order to sever the legal bond of marriage.
She seeks this remedy because she is faced with the reality of the
total breakdown of her marriage. She has never felt it appropriate to
seek a civil decree of annulment.
Although the applicant instituted proceedings for a judicial
separation (divorce a mensa et thoro) she did not pursue this remedy
in the circumstances because it did not offer her any practical
relief concerning matrimonial property and it might have placed at
risk her succession rights under the Succession Act 1965. Moreover,
her husband was unwilling to enter into a separation agreement which
would have afforded her the financial and legal security for herself
and her children. In addition, a separation agreement would only have
been a partial remedy in that it would not have prevented her husband
from entering into a second marriage without any legal termination of
the first.
As to the Merits
Article 8 of the Convention
The applicant submits that the interference with the right to
respect for her family life under this provision arises
from the ambiguous approach of the State which gives no legal effect
to church annulments but tolerates them and provides second church
marriages with all the outward appearance of valid marriages within
the State. She has always maintained that her marriage to Mr. V.
was a valid marriage and when the relationship had irretrievably
broken down that the proper remedy would be the legal termination of
the marriage relationship with liberty to the parties to re-marry.
Insofar as the State passively allows parties to a marriage
which is irretrievably broken down to achieve the objective of a
second marriage without being first required to secure the legal and
financial position of the spouse and any children of the first
relationship - there is a failure to protect family life. The legal
uncertainty and personal insecurity which follows from this failure
constitutes an interference with the right to respect for family life.
There is a declared policy of non-prosecution by the State in
respect of second marriages. The remedy of the availability of a
private prosecution brought by the applicant is no answer. Apart from
the practical and financial difficulties placed on the persons such as
the applicant under Irish law, the private individual may only conduct
a prosecution in respect of an indictable offence such as bigamy up to
the return for trial. Thereafter the DPP becomes dominus litis
and the private prosecutor must yield place to him.
Article 13 of the Convention
The applicant submits that the absence of divorce a vinculo
matrimonii cannot possibly ground a constitutional remedy since
such divorce is specifically prohibited by a constitutional provision
(Article 41.3.2.).
THE LAW
1. The applicant complains that Irish law has failed to protect her right
to respect for family life as guaranteed by Article 8 (Art. 8) of the
Convention. In particular she complains that she was unable to seek a
dissolution of her marriage under Irish law and that the Director of Public
Prosecutions was not prepared to institute any proceedings againt her husband
for the offence of bigamy. This failure, she alleges, undermined her status as
a wife. Finally, she complains that the State has not provided adequate
protection of her property and succession rights.
Article 8 para. 1 (Art. 8-1) of the Convention states as follows:
"Everyone has the right to respect for his private and family life,
his home and his correspondence."
The Commission recalls that the European Court of Human Rights
has held that the right to divorce cannot be derived from either Articles 8 or
12 (Art. 8, 12) of the Convention (Eur. Court H.R., Johnston and Others
judgment of 18 December 1986, Series A no. 112 paras. 51-58). As regards
Article 8 (Art. 8) the Court stated as follows:
"The question that arises, as regards this part of the case,
is whether an effective 'respect' for the applicants' family
life imposes on Ireland a positive obligation to introduce
measures that would permit divorce.
---It is true that, on this question, Article 8 (Art. 8), with its
reference to the somewhat vague notion of 'respect' for
family life, might appear to lend itself more readily to an
evolutive interpretation than does Article 12 (Art. 12).
Nevertheless, the Convention must be read as a whole and the
Court does not consider that a right to divorce, which it
has found to be excluded from Article 12 (Art. 12) (see paragraph 54
above), can, with consistency, be derived from Article 8 (Art. 8), a
provision of more general purpose and scope. The Court is
not oblivious to the plight of the first and second
applicants. However, it is of the opinion that, although
the protection of private or family life may sometimes
necessitate means whereby spouses can be relieved from the
duty to live together (see the above-mentioned Airey
judgment, Series A no. 32, p. 17, para. 33), the
engagements undertaken by Ireland under Article 8 (Art. 8) cannot be
regarded as extending to an obligation on its part to
introduce measures permitting the divorce and the
re-marriage which the applicants seek."
It follows that Article 8 (Art. 8) of the Convention does not oblige
the State to provide for the dissolution of marriage.
As regards the applicant's complaint that the Director of
Public Prosecutions was unwilling to prosecute her husband for bigamy,
the Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention does
not guarantee the right to institute or have instituted criminal
procedings against another person (cf. No. 7116/75, Dec. 4.10.76,
D.R. 7 p. 92). Nor does the Commission consider that such a right can
be derived from Article 8 (Art. 8) of the Convention. In any event the
Commission notes that it was open to the applicant to bring a private
prosecution under Irish law and that she attempted to bring such
proceedings albeit unsuccessfully.
The applicant further complains that she was unable under
Irish law to protect adequately her property and succession rights.
The Commission considers that the regulation of disputes
concerning matrimonial property and maintenance after marital breakdown
falls within the concept of family life under this provision (cf. Eur.
Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, para.
52). However the manner in which such questions are regulated is a
matter to be decided by the Contracting States. Furthermore it is not
the task of the Commission to review decisions reached by national
courts on these issues.
As regards her property rights, the applicant complains in
particular that she has been unable to establish a title to her
matrimonial home and that she received less maintenance for herself
and her children because of the existence of the second relationship.
The Commission observes that it was open to the applicant to
bring proceedings concerning ownership of the matrimonial home that
such proceedings were, in fact, brought and that the High Court
decided on 7 March 1977 that she had no beneficial interest in the
matrimonial home. Proceedings were also brought concerning the
question of maintenance in respect of herself and her children. The
Commission further observes that the applicant decided against
pursuing the remedy of a divorce a mensa et thoro (judicial
separation) where these ancillary questions could also have been
raised and decided upon. The Commission concludes that adequate
judicial procedures existed under Irish law to enable questions
concerning the applicant's property rights and maintenance to be
settled after the breakdown of her marriage.
Finally, as regards inheritance rights, the applicant has
complained that the value of her husband's estate has been
substantially reduced as a result of alleged transfers of assets to
Miss B.
The Commission recalls that while inheritance rights also fall
within the concept of family life within the meaning of Article 8 (Art. 8),
this provision does not confer an entitlement to a particular share in
the estate. Such matters are also left in principle to regulation by
the Contracting States (cf. Eur. Court H.R., Marckx judgment of 13
13 June 1979, loc. cit., paras. 52 and 53). Moreover the Commission
observes that Article 8 (Art. 8) cannot be interpreted to impose restrictions
on the transfer of property by property owners.
The Commission concludes that for the above reasons there has been no
interference with the applicant's right to respect for family life and that
this complaint falls to be rejected as a whole as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained under Article 13 (Art. 13) of the
Convention that the official tolerance of her husband's bigamous
marriage and the absence of provision for divorce in Ireland combine
to deny her an effective remedy for the violation of her rights under
Article 8 (Art. 8).
Article 13 (Art. 13) reads 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."
Insofar as the applicant complains of the official tolerance
of her husband's allegedly bigamous marriage, the Commission observes
that it was open to the applicant to bring a private prosecution
against her husband under Irish law. The possibility of bringing
such proceedings therefore constitutes an effective remedy in respect
of the first limb of the applicant's complaint under this provision.
Insofar as the applicant complains of the absence of any
provision for divorce, the Commission recalls that the Convention does
not oblige the High Contracting Parties to provide for the dissolution
of marriage and also that Article 13 (Art. 13) does not guarantee a remedy
against legislation as such and, a fortiori, against a constitutional
provision (cf. Johnston and Others v. Ireland, Comm. Report 5.3.85,
Eur. Court H.R., Series A no. 112, p. 54).
Accordingly this complaint must also be rejected as manifestly
ill-founded as a whole within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)