CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1995

.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. 24892/94                       by Philip Patrick MAGEE                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 6 April 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 29 March 1994 by Philip Patrick MAGEE against the United Kingdom and registered on 11 August 1994 under file No. 24892/94;        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 1950 and living in Belfast. He is represented before the Commission by Mr. James MacGuill, a solicitor practising in Co. Louth, Ireland.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A. Particular circumstances of the case        In 1975 the applicant was called to the Northern Ireland bar. The applicant is also qualified to practice as a barrister in Ireland though he practises mainly in Northern Ireland.        In 1993 the Lord Chief Justice for Northern Ireland issued a general invitation, to all barristers who satisfied the minimum experience requirements, to apply to become Queen's Counsel in Northern Ireland. In or about October 1993 the applicant, who satisfied those requirements, duly applied but shortly thereafter his application was turned down.        In February 1994 the applicant became aware of the text of an oath which must be taken and a declaration which must be made prior to any barrister becoming a Queen's Counsel in Northern Ireland. The oath and declaration include undertakings of fealty, allegiance and service to the Queen.        No general invitations for applications to become Queen's Counsel have been issued by the Lord Chief Justice for Northern Ireland since the above-mentioned invitation which issued in 1993. The applicant remains eligible to re-apply to become a Queen's Counsel whenever such applications are invited in the future.   B. Relevant domestic law and practice   1.    Queen's Counsel        The position of Queen's Counsel originated in the middle ages when Queen's Counsel were legal advisors and advocates to the English Crown.        At the present time the practice of a Queen's Counsel in Northern Ireland involves no special functions over and above those of a junior barrister. A Queen's Counsel is essentially a more senior position at the bar involving greater prestige, professional dignity and earning power than junior barristers.   2.    Appointment of Queen's Counsel        A barrister must be invited to apply for the position of Queen's Council by the Lord Chief Justice for Northern Ireland. The invitation is normally a general invitation directed to all those junior barristers of certain experience at the bar. Such invitations are made sporadically and typically occur at intervals of two to five years.        The decision to appoint a particular barrister as Queen's Counsel is made by the Lord Chief Justice for Northern Ireland though the formal appointment is made by warrant of the Secretary of State for Northern Ireland.        Once the application to become a Queen's Counsel is accepted the barrister is obliged to take an oath and make a declaration prior to being appointed. If a barrister's application is not accepted he must await a further general invitation from the Lord Chief Justice for Northern Ireland before being in a position to apply for the position again.        There is no statutory or secondary legislation governing the appointment of Queen's Counsel in Northern Ireland. In addition, there are no stated or known criteria by which the applications of junior barristers are judged, the evaluation process is carried out in secret and the reasons for a decision on a particular application are not communicated to the applicant barristers.   3.    The oath and declaration        The requirement to take the oath and make the declaration comes from the original function of Queen's Counsel in the middle ages and has been in force ever since.        The texts of the oath and declaration are as follows:        Oath        "I, AB do swear by almighty God that I will be faithful and bear      true allegiance to her Majesty Queen Elizabeth the Second, Her      Heirs and Successors, according to law."        Declaration        "I, AB do declare that well and truly I will serve the Queen as      one of her Counsel learned in the law and truly counsel the Queen      in her matters, when I shall be called upon to do so, and duly      and truly minister the Queen's matters and sue the Queen's      process after the course of the law, and after my cunning. I will      duly in convenient time speed such matters as I may lawfully do      which any person shall have to do in the law against the Queen.      And in all other respects I will be attendant to the Queen's      matters when I be called thereto."   COMPLAINTS        The applicant complains under Articles 9 and 10 of the Convention that the oath and declaration, which he is required to take in order to become a Queen's Counsel in Northern Ireland, operates as a professional and financial penalty on his opinions and beliefs and on his freedom to express them.        The applicant argues that the oath and declaration require support for and fealty to a protestant English monarchy. In view of the fact that he is an Irish national, a nationalist, and a person philosophically opposed to the idea of a monarchy, he cannot take the oath or make the declaration nor, therefore, apply to or become a Queen's Counsel. He further submits that, in light of the condition of the society of Northern Ireland which is characterised by a conflict of national identity and divided allegiances, the oath is politically and morally offensive. The applicant argues that whatever the origins of the duties of Queen's Counsel, there is nothing in the contemporary practice of Queen's Counsel that requires such an oath and declaration. In any event, the applicant has no objection to an oath or declaration indicating adherence to the law and requiring him to act honourably in the interests of the people of Northern Ireland.        The applicant also complains under Article 14 of the Convention that the requirement to take the oath and declaration discriminates against the applicant on the grounds of his political beliefs and opinions.        Finally, the applicant complains under Article 13 of the Convention that he has no effective domestic remedy.   THE LAW        The applicant complains that the requirement in Northern Ireland to take an oath and make a declaration ("the requirement") prior to becoming Queen's Counsel (which oath and declaration include undertakings as to fealty, allegiance and service to the Queen) operates as a professional and financial penalty on his opinions and beliefs. He also complains that the requirement discriminates against him on grounds of his political beliefs and opinions and that he has no effective domestic remedy in all these respects. The applicant invokes Articles 9, 10, 13 and 14 (Art. 9, 10, 13, 14) of the Convention.        However, the Commission is not required to determine the question as to whether the applicant's complaints disclose a violation of the Convention because, even assuming that the applicant has exhausted all domestic remedies, the application is, in any event, inadmissible for the followings reasons.        The Commission recalls that according to the constant case-law of the Convention organs, the Convention does not provide for an actio popularis or permit individuals to complain about a law in abstracto. An applicant must be able to demonstrate that the measures, about which the applicant complains, have been applied to the applicant's detriment or that the applicant is personally and directly affected by those measures (cf, for example, Eur. Court H.R. Klass and others judgment of 6 September 1978, Series A no. 28, paras. 33-34 and Marckx judgment of 13 June 1979, Series A no. 31, para. 27)        In the present case and as far as the application made in 1993 to become Queen's Counsel is concerned, the Commission notes that, following an invitation by the Lord Chief Justice for Northern Ireland in 1993, the applicant applied to become Queen's Counsel but his application was rejected. Therefore the question of the oath and declaration did not arise for the applicant at that time. It is further noted in this regard that the applicant has submitted that he was not, at that stage, even aware of the requirement.        Since 1993 the Lord Chief Justice for Northern Ireland has not issued any further invitations. Until such an invitation is issued the applicant cannot make any further application to become a Queen's Counsel, such an application cannot be accepted and the question of the applicant taking the oath and making the declaration will not arise. In those circumstances the Commission considers that the complaints of the applicant, in respect of the impact on him of the existence of the requirement and in relation to any future obligation to take the oath and make the declaration, are premature.        Accordingly, the Commission finds that the applicant cannot claim to be a victim of a violation of the Convention and therefore his application must be declared inadmissible as manifestly ill-founded pursuant to Article 27 para 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority        DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber          President of the First Chamber        (M. F. BUQUICCHIO)                       (C. L. ROZAKIS)