CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)