B. The Applicant did not receive from the Irish High Court a fair hearing.

Transcription

1 III. EXPOSÉ DE LA OU DES VIOLATION(S) DE LA CONVENTION ET/OU DES PROTOCOLES ALLÉGUÉE(S), AINSI QUE DES ARGUMENTS À L APPUI STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS 15. The Applicant, Patrick Kelly, alleges that Ireland has violated Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ). A. The Applicant did not receive from the Irish Supreme Court a fair hearing, a public hearing or a hearing within a reasonable time and the Irish Supreme Court the tribunal established by law was not impartial. B. The Applicant did not receive from the Irish High Court a fair hearing. C. The Applicant did not receive from the so-called Visitors of Dublin s Trinity College a fair hearing or a public hearing and this tribunal is neither independent nor impartial and is not constituted according to law. The Applicant, Patrick Kelly, also alleges that Ireland has violated Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( 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 ). D. The Applicant does not have an effective remedy before a national authority to deal with the alleged violations by the Irish Supreme Court of his rights under Article 6, paragraph 1 of the Convention. E. The Applicant did not have an effective remedy before a national authority to deal with the alleged violation by the Irish High Court of his rights under Article 6, paragraph 1 of the Convention. F. The Applicant did not have an effective remedy before a national authority to deal with the alleged violations by the Visitors of Dublin s Trinity College of his rights under Article 6, paragraph 1 of the Convention. Both the Irish High Court and the Irish Supreme Court refused to give the Applicant leave to apply for judicial review and a judicial review application cannot be made without leave to do so. The relevant arguments are set out in this Application and in the documents relating to the Applicant s application to the Irish Supreme Court for leave to institute judicial review proceedings against the Visitors of Trinity College, Dublin. All relevant documents are listed at Part VII of this Application and are included with this Application. With the exception of the relevant arguments relating to the alleged violations by the Irish Supreme Court of the Applicant s rights under the Convention, all of the relevant arguments are stated in the documents relating to the Applicant s application to the Irish Supreme Court for leave to institute judicial review proceedings against the Visitors of Trinity College, Dublin.

2 In Boyle and Rice v. the United Kingdom (Application no. 9659/82; 9658/82) (27 April 1988) the European Court of Human Rights said, at paragraph 53: Notwithstanding the terms of Article 13 (art. 13) read literally, the existence of an actual breach of another provision of the Convention (a substantive provision) is not a prerequisite for the application of the Article (art. 13) (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 29, 64). Article 13 (art. 13) guarantees the availability of a remedy at national level to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 74, 205, and the authorities cited there). In my case a remedy at national level to enforce the substance of the Convention rights and freedoms against the Visitors of Dublin s Trinity College was not available. In Ireland a remedy at national level to allege non-compliance by the Irish Supreme Court with the substance of the Convention rights and freedoms is not available. In Ireland a remedy at national level to enforce the substance of the Convention rights and freedoms against the Irish Supreme Court is not available. In my case a remedy at national level to allege non-compliance by the Irish High Court with the substance of the Convention rights and freedoms was not available. In Plattform Ärzte für das Leben v. Austria (Application no /82) (21 June 1988) the European Court of Human Rights held, at paragraph 25: Under its [i.e. the European Court s] case-law, Article 13 (art. 13) secures an effective remedy before a national authority to anyone claiming on arguable grounds to be the victim of a violation of his rights and freedoms as protected in the Convention; any other interpretation would render it meaningless (see, as the most recent authority, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, 52). In Doran v. Ireland (Application no /99) (31 July 2003) the European Court of Human Rights said, at paragraph 55: Article 13 of the Convention guarantees the availability at national level of a remedy 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 to deal with the substance of an arguable complaint under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no /96, 157, ECHR 2000-XI). At paragraph 56 the Court explained: The scope of the Contracting States obligations under Article 13 varies depending on the nature of the applicant s complaint; however, the remedy required by Article 13 must be effective in practice as well as in law (see, for example, lhan v. Turkey [GC], no /93, 97, ECHR 2000-VII). The term effective is also considered to mean that the remedy must be adequate and accessible (Paulino Tomás v. Portugal (dec.), no /00, ECHR ). At paragraph 69 the Court emphasized: the remedy must be effective both in law and in practice [emphasis added].

3 In Abdoella v. the Netherlands (Application no /87) (25 November 1992) the Court said, at paragraph 24: Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of its requirements. In Ireland the legal system is not organise[d] in such a way that [Irish] courts can meet each of the requirements of Article 6, paragraph 1 of the Convention. In Airey v. Ireland (Application no. 6289/73) (9 October 1979) the Court said, at paragraph 24: The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, the judgment of 23 July 1968 in the Belgian Linguistic case, Series A no. 6, p. 31, paras. 3 in fine and 4; the above-mentioned Golder judgment, p. 18, para. 35 in fine; the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, pp ; para. 42; and the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25). My right of access to the courts was theoretical and illusory. At paragraph 26 the Court added: the Convention must be interpreted in the light of present-day conditions (abovementioned Marckx judgment, p. 19, para. 41) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals (see paragraph 24 above). Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention. Also at paragraph 26, the Court said: Article 6 para. 1 (art. 6-1) guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations. In Ireland I did not have an effective right of access to the courts for the determination of [my] civil rights and obligations. In Pullar v. the United Kingdom (Application no /93) (10 June 1996) the Court said, at paragraph 30: It is well established in the case-law of the Court that there are two aspects to the requirement of impartiality in Article 6 para. 1 (art. 6-1). First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, for instance, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28). The three-member division of the Irish Supreme Court that dismissed my application for leave was not impartial from an objective viewpoint. One of the three judges had been a student at Dublin s Trinity College and subsequently an employee of Dublin s Trinity College.

4 Equally, the Visitors of Dublin s Trinity College are not impartial from an objective viewpoint. In Bryan v. the United Kingdom (Application no /91) (22 November 1995) the Court said, at paragraph 37: In order to establish whether a body can be considered independent, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence (see, inter alia, the Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16, para. 32). The Visitors of Dublin s Trinity College are not independent. In Gast and Popp v. Germany (Application no /95) (25 February 2000) the Court said, at paragraph 70: The reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court s case-law, in particular the complexity of the case, the applicants conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see the Süßmann judgment cited above, p , 48, and the Pammel and Probstmeier v. Germany judgments of 1 July 1997, Reports 1997-IV, p. 1110, 60, and p. 1136, 55, respectively). The length of the proceedings (two years) was not reasonable I was, after all, only applying for leave to institute judicial review proceedings. In McMullen v. Ireland (Application no /98) (29 July 2004), the Court said, at paragraph 31: Article 6 1 of the Convention requires that all stages of legal proceedings for the determination of... civil rights and obligations, not excluding stages subsequent to judgment on the merits, be resolved within a reasonable time (see Silva Pontes v. Portugal, judgment of 23 March 1994, Series A no. 286-A, 33 36). My application for leave to institute judicial review proceedings was not resolved within a reasonable time. In Thompson v. the United Kingdom (Application no /97) (15 June 2004) the Court note[d], at paragraph 44: the applicant was a layman not in a position to evaluate his legal position or, consequently, the options to be pursued by him (the above cited Pfeifer and Plankl case, at 38). I am a layman not in a position to evaluate [my] legal position or consequently, the options I could have or should have pursued or did pursue in regard to the relief [I] sought in my 2005 application for leave to apply for judicial review or the grounds on which I could claim that relief or other relief. In Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (62/1997/846/ ) (10 July 1998) the Court said, at paragraph 73: The Court recalls that Article 6 1 embodies the right to a court, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.

5 However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1502, 50). The requirement to obtain leave to institute judicial review proceedings is a limitation placed by Ireland on the right to institute proceedings before a court in civil matters. By refusing to give me leave the Irish High Court, and later the Irish Supreme Court, blocked me from instituting judicial review proceedings against the Visitors of Trinity College, Dublin. The way in which the limitation on the right of access was applied by the Irish Supreme Court and Irish High Court served to deprive me of the right of access. In addition, there is not a reasonable relationship of proportionality between the means employed by Ireland to limit the right to institute judicial review proceedings and the aim sought to be achieved by Ireland in limiting the right to institute judicial review proceedings.