CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 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 }                      AS TO THE ADMISSIBILITY OF                       Application No. 22521/93                     by S.H.                     against Ireland        The European Commission of Human Rights (First Chamber) sitting in private on 1 December 1993, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS             Mrs. M.F. BUQUICCHIO, Secretary to the 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 4 April 1992 by S.H. against Ireland and registered on 24 August 1993 under file No.22521/93;        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 national born in 1991. She is represented in the proceedings before the Commission by her father, an Irish citizen currently living in London.        The facts, as submitted by the applicant and which may be deduced from the documents lodged with the application, may be summarised as follows.        The applicant`s father is an Irish citizen who emigrated from Ireland as a teenager. He later married G.A.A., a Ghanaian national. The couple have two children, one of whom is the applicant.        The couple originally lived in Ghana.   However, as a consequence of the detention of the applicant`s father as an alleged spy, in or about 1991 they moved to Bulgaria.        On 7 April 1991 the applicant was born in Bulgaria.        On 1 March 1992 the family decided to move to Greece. In Greece G.A.A. applied for an Irish visa.   On or about 9 March 1992 G.A.A. returned to Accra, Ghana.        On 26 March 1992 the applicant's father was informed by the Irish Embassy in Athens that the Department of Justice in Dublin had refused G.A.A.`s application for an Irish visa.        In or about April 1992 the applicant's father moved to London, apparently with the applicant and her sibling.        On 14 May 1992 the applicant's father was informed by the Irish Embassy in   London that the Department of Justice would not enter into correspondence with the applicant's father.   The Embassy added, however, that G.A.A. could submit a new visa application at any time and supplied an application form.        On 17 May 1992 G.A.A. again applied for an Irish visa.        On 29 June 1992 the applicant's father wrote to the Irish Embassy in London, requesting information about the Irish domestic remedies available to G.A.A. No reply has been given to him.        On 24 July 1992 the applicant's father was informed by the Irish Embassy in London that G.A.A.`s latest application had been unsuccessful. G.A.A. asked for reasons for the refusal and applied for Irish citizenship.        On 30 July 1992 the applicant's father wrote a further letter to the Irish Embassy in London, again asking whether any domestic remedy is available to G.A.A. No reply has been given to him.        On 16 September 1992 the Irish Embassy in London informed the applicant's father that they do not generally give reasons for the refusal of visa facilities in a particular case.        On 18 January 1993 the applicant's father was informed by the Irish Embassy in London, in substance, that GAA, under the Irish Nationality and Citizenship Act, could not apply for post-nuptial citizenship as she and he were not living together as husband and wife.        On 10 February 1993 the applicant's father was advised by British solicitors that he should try to ascertain if legal aid was available in Ireland as the case concerns Ireland and Irish law. He tried to obtain legal aid via the Irish Embassy, London and Irish private firms of solicitors, but in most cases no reply was given to him.        On 15 March 1993 an Irish firm of solicitors in Dublin took up the matter with the Department of Justice and Department of Foreign Affairs, but after his reply to enquiries from this firm the applicant's father states that he heard nothing more.        A third application for a visa was refused on 12 May 1993        On 28 July 1993 the father of the applicant was informed by the Irish Law Society that the Law Society is unable to provide him with any legal aid.   COMPLAINTS        The applicant claims that her and her mother`s treatment by the Irish authorities amounts to inhuman and degrading treatment and invokes Article 3 of the Convention.        The applicant complains under Article 8 of the Convention that her mother cannot enter Ireland. In this respect she claims that this denial is discriminatory and invokes Article 14 of the Convention.        Finally, under Article 13 of the Convention the applicant complains that there is no effective remedy available to her.   THE LAW   1.    The applicant, through her father, complains that her mother is not able to enter Ireland.   She invokes Articles 3, 8, 13 and 14 (Art. 3, 8, 13, 14) of the Convention.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the above Articles as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        In particular, the applicant has failed to bring proceedings in the High Court which, with the possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (cf. No. 15141/89, Dec. 15. 2. 90, D.R. 64, pp. 203-206).        In particular, it would be open to the applicant and her parents to apply to the High Court for an Order directing the Minister for Justice to grant the mother a visa having regard to the child's rights under Article 41 of the Constitution and/or to challenge the constitutionality of the relevant part of the Irish Nationality and Citizenship Act (cf. Fajujonu v. the Minister for Justice (1990 ILRM Vol. 10 No. 4). The applicant has failed to do so. Indeed, the applicant apears not even to have applied to the Irish Legal Aid Board for legal aid.        Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved her, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal. In particular, the fact that the applicant`s father on several occasions requested the Irish authorities to provide him with information about the available domestic remedies available to him but received no or no proper reply does not constitute a `special circumstance` in this respect.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and that her application must be rejected under Article 27 para. 3 (Art. 27-3) 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)                        (A. WEITZEL)