CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 octobre 1991

.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. 16221/90                       by Colm McKENNA                       against Ireland             The European Commission of Human Rights sitting in private on 17 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 20 December 1989 by Colm McKenna against Ireland and registered on 27 February 1990 under file No. 16221/90;           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 applicant is an Irish citizen born in 1962 and resident in County Donegal.   He is represented by Messrs.   James P. Sweeney & Co., solicitors practising in County Donegal.   The facts as submitted by the applicant may be summarised as follows.           Pursuant to the 1956 Gambling and Lotteries Act, the Donegal County Council (hereinafter the "Council") operated a system of licensing of gambling arcades.   The applicant operated gambling arcades under licence since 1980.           On 19 January 1986, Donegal County Council held a special meeting to consider the motion proposed by a councillor that Donegal County Council, pursuant to Section 13 of the 1956 Act, rescind the adoption of Part III of the Act in respect of the whole administrative area of the said council.   There had been previous unsuccessful motions to this effect, a number of councillors and pressure groups having campaigned against gaming.           The   minutes of the meeting record that the proposer of the motion gave as a reason for the rescission the evils of gaming machines and the distress that they were causing among families in the poorer section of the community.   At the conclusion of the meeting the motion was adopted.           In a case McEniff v.   Donegal County Council (No. 2034 of 1987) an action was pursued challenging the validity of the resolution on the ground that there had not been proper notice of the meeting. Following a hearing on 7 March 1989, Mr Justice Egan dismissed the claim finding that the proper procedure had been followed.   On 17 November 1989, the Supreme Court struck off the appeal against this decision for want of prosecution.   Following these decisions, the Circuit Court judge of the region on 23 and 28 November 1989 dismissed all appeals (including the applicant's) against the refusal to grant further licences, stating that he was bound by the Supreme Court decision.   Relevant domestic law and practice           The   Gaming and Lotteries Act 1956 provides in Part III for the licensing of amusement halls and funfairs.           Section 13 provides as follows:           "A local authority may by resolution adopt this Part in respect of the whole or a specified part of its administrative area and may by resolution rescind such adoption."   COMPLAINTS           The applicant complains that as a result of the revocation of his licence he will lose his livelihood and his property rights over his machines and buildings.           He complains that other forms of gambling are still legal and that there is no provision of compensation or means of redress.   He invokes Article 1 of Protocol No. 1 to the Convention.   THE LAW           The applicant complains that the revocation of his licence to operate his gambling arcades deprives him of his livelihood and interferes with his property rights contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention, which provides:     "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."           The Commission notes that the applicant has not instituted proceedings in the High Court challenging the constitutionality of the provision of the 1956 Act which he complains deprived him of his livelihood.   The Commission finds it unnecessary to decide however whether he has in fact exhausted remedies as required by Article 26 (Art. 26) of the Convention for the reasons set out below.           The Commission has considered whether the licence to operate a gambling arcade can give a licence-holder a right which is protected under Article 1 of the First Protocol (P1-1).   The Commission finds that the economic interests connected with the applicant's gambling business were "possessions" within the meaning of the above provision.   The rescission of the resolution allowing licences of amusement arcades prohibited the continuation of the applicant's business and in the circumstances constituted an interference with his rights under Article 1 of Protocol No. 1 (P1-1) (see e.g.   Eur.   Court H.R., Van Marle and Others judgment of 26 June 1986, Series A no. 101, p. 13, paras. 41-42).           The Commission has therefore considered whether the revocation was justified under the second paragraph of this provision as a control of the use of property in accordance with the general interest, which requires an examination of the lawfulness and purpose of the interference and of its proportionality (see e.g.   Eur.   Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 139, p. 22-24, paras. 56-62).           The Commission notes that the rescission was based on Section 13 of the 1956 Act and that it was motivated by the interests of the community.   It therefore is satisfied that it was a measure in accordance with law which pursued the general interest.   On the question of proportionality, the Commission notes that the applicant's licence to operate his business had always been subject to the local authority's unfettered power to revoke its resolution allowing the licensing of amusement arcades.    The applicant must also have been aware that part of public opinion had been adverse to the continuation of these types of businesses in the area and that individual councillors and pressure groups had campaigned for rescission under Section 13.           In view of the wide discretion enjoyed by States in this area, the Commission finds in the circumstances of this case that the removal of the applicant's licence was justified under the second paragraph of Article 1 of Protocol No. 1 (P1-1).           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)