CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1993

.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 }                               FIRST CHAMBER                         AS TO THE ADMISSIBILITY OF                         Application No. 19538/92                       by GOODMAN INTERNATIONAL                       and Lawrence GOODMAN                       against Ireland           The European Commission of Human Rights sitting in private on 12 January 1993, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                   G.B. REFFI                Mrs. M.F. BUQUICCHIO, Secretary to the First 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 17 February 1992 by by GOODMAN INTERNATIONAL and Lawrence GOODMAN against Ireland and registered on 24 February 1992 under file No. 19538/92;         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 of the present case, as submitted by the applicants and which may be deduced from documents lodged with the application, may be summarised as follows.         The first applicant, Goodman International, is an incorporated company registered in Ireland.   The second applicant, Lawrence Goodman, is an Irish citizen born in 1937 and resident in Ireland.   He is chief executive of the first applicant.   Both applicants are represented before the Commission by Messrs. A & L Goodbody, Solicitors, practising in Dublin, Ireland.   A.     The particular circumstances of the case         The first applicant is the largest company operating in the beef processing industry in Ireland.   It holds 40 % of the market.         For some years prior to May 1991 allegations of large scale illegal activities in the beef industry were made in Dail Eirean (the Lower House of the Irish Parliament).   Similar allegations were made on a television programme entitled "World in action" transmitted by Independent Television in Ireland on 13 May 1991.   Several of the allegations involved the activities of the applicants, certain politicians, customs and tax authorities, banks and the Department of Agriculture and Food.         Dail Eirean adopted a resolution on 24 May 1991 that it was expedient that a Tribunal of Inquiry (hereafter referred to as "the Tribunal") be established to enquire into these allegations, as they were of urgent public interest given the important position of the beef industry in the economic life of the country.   Seanad Eirean (the Upper House of the Irish Parliament) adopted a similar resolution on 29 May 1991.         Pursuant to these resolutions, the Minister for Agriculture and Food by Order dated 31 May 1991 appointed the President of the High Court, Mr. Justice Hamilton, to be the sole member of the Tribunal. The Tribunal is required to report on its conclusions to the Dail and the Seanad and, if it thinks fit, make recommendations.         The Tribunal held a preliminary hearing on 21 June 1991, at which a "statement of allegations" was drawn up identifying the alleged illegal activities, fraud and malpractice in the beef processing industry which were to be investigated.         In September 1991 and on 9 October 1991 the applicants made written submissions and oral submissions respectively to the Tribunal objecting to the nature of the inquiry and the manner in which it was to be conducted.   These submissions were rejected by the Tribunal. As to the procedure for obtaining evidence Mr. Justice Hamilton remarked as follows :         "The rules of evidence which have been established over many       years by the courts are of extreme importance to ensure fair       play.   And having regard to the nature and importance of the       allegations and the possible effect on the good name and       reputation of any person appearing before it, it is my intention       to apply, wherever possible, the rules of evidence which have       been established over many years, reserve the right in         exceptional circumstances, having heard objections to the       admissibility of such evidence in the ordinary way, and counsel       for any party affected in any way by any evidence sought to be       adduced before the Tribunal will have ample opportunity of       objecting to its admissibility and secure a ruling thereon.         (The applicants' counsel) has sought a ruling from this court or       this Tribunal also with regard to the onus of proof.   Again, the       onus of proof will differ having regard to the nature of the       allegation, but I can assure (counsel) and any other party that       in these proceedings there will be no finding of an allegation       involving criminal activity unless I am satisfied beyond all       reasonable doubt."         The applicants sought and obtained leave to issue judicial review proceedings where similar submissions were made in the High Court. These were also rejected by Mr. Justice Costello on 21 October 1991 who held as follows on the Tribunal's functions :         "The functions of the Tribunal are to inquire, report and if       appropriate, to make recommendations.   When reporting on       allegations of wrongdoing it expresses an opinion as to whether       the allegations are true or false, but this opinion is of no       legal effect.   The Tribunal determines no legal rights ; it       imposes no legal obligations.   It expresses conclusions for the       guidance of the legislature and the executive ...         The terms of reference in this case require the Tribunal to       inquire into the truth or falsity of a number of allegations of       wrongdoing including assertions that the criminal law has been       breached.   But in inquiring into these allegations and in       reporting its opinion on them the Tribunal is not imposing any       liabilities or affecting any rights.   It is not deciding any       controversy as to the existence of any legal right.   It is not       making any determination of any rights or liabilities.   It is not       imposing any penalties.   It may come to the conclusion that some       or all the allegations of wrongdoing are true, but this opinion       is devoid of legal consequences.   Its functions of inquiring,       reporting and recommending cannot therefore be regarded as the       'administration of justice'.   The Tribunal is not exercising a       'judicial function' in the case of allegations of criminal       behaviour.   It is not trying anyone on a criminal charge.   In my       judgment parliament did not direct the establishment of a       Tribunal that is to exercise judicial functions ...         The same considerations apply in respect of disputes which may       exist at the time of the Tribunal appointment and which may later       become the subject of civil litigation.   The holding of an       inquiry does not in any way prohibit a party to a dispute       referring it to the court's adjudication or prejudice its       consideration by the court ...           The obligation to adopt fair procedures may require the Tribunal       to take appropriate measures to ensure that its proceedings do       not constitute in practice an interference with the fair trial       of an accused arising, for example, from the publicity attendant       on the Tribunal's hearings.   In this case the obligation to adopt       fair procedures has been amply recognised throughout the       Tribunal's deliberations and in the course of its communications       with the parties.   On 10 October 1991 the Tribunal stated that       'if at any time it appears to me that there is the slightest       danger of any interference with the administration of justice I       will desist from dealing with the matter'."         The applicants appealed to the Supreme Court which upheld the decision of the High Court in its entirety on 5 November 1991.         The allegations made against the applicants, and in particular the proceedings of the Tribunal, have received significant media attention.   B.     The relevant domestic law         The Tribunal in the present case was established by way of the administrative order of the Minister for Agriculture and Food on 31 May 1991.   The Government or any Minister can inquire into matters of public interest as part of the exercise of their executive powers.   The proceedings of the Tribunal are regulated by the Tribunals of Inquiry (Evidence) Act 1921 and the Tribunals of Inquiry (Evidence) (Amendment) Act 1979.   Sections 4, 5 and 6 (1) of the latter legislation provide as follows :         "4.   A tribunal may make such orders as it considers necessary       for the purposes of its functions, and it shall have, in relation       to their making, all such powers, rights and privileges as are       vested in the High Court or a judge of that Court in respect of       the making of orders.         5.    A statement or admission made by a person before a tribunal       or when being examined in pursuance of a commission or request       issued under subsection (1) of section 1 of the Principal Act       shall not be admissible as evidence against that person in any       criminal proceedings ...         6.    Where a tribunal, or, if the tribunal consists of more than       one member, the chairman of the tribunal is of opinion that,       having regard to the findings of the tribunal and all other       relevant matters, there are sufficient reasons rendering it       equitable to do so, ... the chairman ... may by order direct that       the whole or part of the costs of any person appearing before the       tribunal by counsel or solicitor, as taxed by a Taxing Master of       the High Court, shall be paid to the person by any other person       named in the order."           The Supreme Court interpreted the latter provision in the following manner :         "Section 6. The liability to pay costs cannot depend upon the       findings of the Tribunal as to the subject matter of the Inquiry.       When the Inquiry is in respect of a single disaster, then       ordinarily, any party permitted to be represented at the Inquiry       should have their costs paid out of public funds.   The whole or       part of those costs may be disallowed by the Tribunal because of       the conduct of or on behalf of that party at, during or in       connection with the Inquiry.   The expression 'the findings of the       Tribunal' should be read as the findings as to the conduct of the       parties at the Tribunal.   In all other cases the allowance of       costs at public expense lies within the discretion of the       Tribunal, or, where appropriate, its chairman."     COMPLAINTS   1.     The applicants complain that they are charged with criminal offences to be determined by the Tribunal in the absence of a fair trial as guaranteed by Article 6 para. 1 of the Convention, and that they have not been afforded the presumption of innocence guaranteed by Article 6 para. 2.   2.     The applicants further complain that the Tribunal and the attendant publicity have damaged their civil right to a good name and reputation without any redress being available to them under Irish law, in breach of the guarantees of Article 6 para. 1.   3.     The applicants complain of damage to the commercial value of their business by the Tribunal in violation of Article 1 of Protocol No. 1 to the Convention.   4.     The applicants allege that they have been singled out for discriminatory treatment by their subjection to an inquiry as opposed to a criminal trial, and that this is a breach of Article 6 read in conjunction with Article 14 of the Convention.   5.     In respect of all of the above complaints the applicants further claim a breach of Article 13 of the Convention as, allegedly, there is no effective domestic remedy.     THE LAW   1.     The applicants complain that the Tribunal established by the Minister for Agriculture and Food to inquire into the Irish beef industry is, in effect, in the process of determining criminal charges against them without affording them the guarantees of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.   They submit, inter alia, that the criminal nature of the proceedings is reflected in the power of the Tribunal under section 6 of the Tribunal and Inquiry (Evidence) (Amendment) Act 1979 to inflict punishment upon them by way of a costs order, and in the Tribunal's indication that it will base its conclusions on the criminal standard of proof, namely, "beyond all reasonable doubt".           Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention read       as follows :         "1.   In the determination of his civil rights and obligations or       of any criminal charge against him, everyone is entitled to a       fair and public hearing within a reasonable time by an       independent and impartial tribunal established by law.   Judgment       shall be pronounced publicly but the press and public may be       excluded from all or part of the trial in the interest of morals,       public order or national security in a democratic society, where       the interests of juveniles or the protection of the private life       of the parties so require, or to the extent strictly necessary       in the opinion of the court in special circumstances where       publicity would prejudice the interests of justice.         2.    Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission must first consider whether Article 6 paras. 1 and 2 (Art. 6-1, 6-2) are applicable to the proceedings before the Tribunal of Inquiry, i.e. it must ascertain whether there is any "criminal charge" against the applicants to be determined by the Tribunal.         In deciding whether a "criminal charge" within the meaning of the Convention is at issue in a particular case, the case-law of the Convention organs requires, first, reference to the domestic law involved with a view to ascertaining whether the legal system of the respondent State classifies the "offence" as "criminal".   The nature of the "offence" and the degree of severity of the penalty that the person concerned risks incurring must then be considered (cf. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, pp. 34-35, para. 82 ; Öztürk judgment of 21 February 1984, Series A no. 73, p. 18, para. 50 ; Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 35-38, paras. 70-73 ; Weber judgment of 22 May 1990, Series A no. 177, pp. 17-18, paras. 31-34 ; and Demicoli judgment of 27 August 1991, Series A no. 210, pp. 15-16, para. 31).         The applicants in the present case have been and are being required to provide evidence and to be heard as witnesses in proceedings initiated by the Irish Parliament to inquire into alleged illegal practices in the beef processing industry.   In domestic law no offence and no formal penalty are involved.         The Commission recalls that it is possible for a person to be "charged" within the meaning of Article 6 (Art. 6) of the Convention even where domestic law sees no charge (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 23, para. 44).   In the present case, however, the role of the Tribunal is to inquire, to express an opinion and, if appropriate, to make recommendations for the guidance of the legislature and the executive on improvements in the lawful running of the beef industry.   These are matters of wide general public concern which, although closely involving the applicants' activities and the truth or falsity of certain criminal allegations, cannot be said to amount to a disguised form of criminal proceedings.           The Commission finds that there is no evidence that the Tribunal's discretionary powers to order costs would be used as a sanction approaching that of a criminal penalty (cf. p. 6 above). Moreover the Tribunal has not stated that the burden of proof throughout the proceedings will be that of a criminal trial, that of "beyond all reasonable doubt".   The Tribunal said that the onus of proof to be applied would differ according to the nature of the allegations under investigation.   Moreover it has been at pains to emphasise that it is not intending to interfere with the administration of justice.   If there would be the slightest danger of doing so the Tribunal will desist from dealing with the matter (cf. p. 5 above).         The Commission finds therefore that the subject matter before and proceedings of the Tribunal of Inquiry do not involve the determination of a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Moreover the applicants cannot be said to be "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.   It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants next complain that the Tribunal, with its attendant publicity, has irreparably damaged their good reputation, with the result that they had no effective remedies before the civil courts, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.         However, the Commission notes that the Tribunal has not yet issued its report on the inquiry.   It is therefore not possible to say what conclusions   might be reached involving the applicants' business activities and whether those conclusions would have any damaging effect on the applicants'reputation.   If the applicants are essentially complaining about the very fact that a public inquiry touching on their business concerns is being held at all, the Commission is of the view that no protection under Article 6 (Art. 6) of the Convention can be derived in a democratic society to prevent the conduct of inquiries into matters of major public importance as in the present case.   The Commission concludes therefore that at the present stage of the inquiry in question there is no evidence to support the applicants' contention that the actions of the Tribunal have in any way interfered with or determined the applicants' "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants allege that damage has been caused to the commercial value of their business by the Tribunal, the full extent of which is impossible to quantify at this stage, but which is sufficient to establish that they are victims of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.         Article 1 of Protocol No. 1 (P1-1) reads as follows :         "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."         However the Commission finds no evidence in the case-file to substantiate the applicants' claim.   No evidence of any significant economic prejudice due directly to the Tribunal proceedings has been submitted.   In the circumstances, therefore, the Commission finds that no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) has been disclosed in the present case.   It follows that this aspect of the case is also manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicants also complain that they are victims of discrimination, having been singled out for the inquiry rather than being prosecuted and tried before the criminal courts.   They invoke Article 14 of the Convention read in conjunction with Article 6 (Art. 14+6), the former reading as follows :         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         However, on the evidence before it, the Commission does not consider that the applicants can be said to have been so victimised. The Tribunal certainly took evidence at length as to the applicants' activities.   This was inevitable as the inquiry concerns the beef processing industry of which the applicants make up 40 %, but it cannot be classed as victimisation.   Moreover the Commission has already held above that the Tribunal's proceedings involve neither a disguised determination of a criminal charge nor a determination of the applicants' civil rights or obligations.   Accordingly the Commission finds no appearance of a violation of Article 14 of the Convention read in conjunction with Article 6 (Art. 14+6).         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     Finally the applicants allege that they have no effective remedy at their disposal for their Convention claims, in breach of Article 13 (Art. 13) of the Convention which provides 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."         However the Commission recalls that Article 13 (Art. 13) does not require a remedy under domestic law in respect of every alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No. 131, p. 23, para. 52).           In light of its conclusions above, the Commission finds that the applicants cannot be said to have an "arguable claim" of a violation of their Convention rights.         It follows that this complaint must also be rejected as being 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 First Chamber         President of the First Chamber           (M.F. BUQUICCHIO)                             (J.A. FROWEIN)