CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 février 1997

.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. 24265/94                       by Liam DEVENNEY                       against the United Kingdom          The European Commission of Human Rights sitting in private on 24 February 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 12 April 1994 by Mr. Liam Devenney against the United Kingdom and registered on 3 June 1994 under file No. 24265/94;      Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 15 May 1995 to communicate the      application;   -     the Commission's decision of 1 July 1995, in the light of the      Government's request of 26 June 1995, to adjourn further      consideration of the case pending the cases of Tinnelly and      McElduff (Nos. 20390/92 and 21322/93);   -     the Commission's decision of 7 September 1996 to ask the      Government whether, in the light of the Commission's      admissibility decision of 20 May 1996 in the cases of Tinnelly      and McElduff, they wished to make observations on admissibility      and merits, and the Government's reply of 6 December 1996 that      they did not wish to make observations of admissibility;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Irish citizen born in 1958.   He is represented before the Commission by Messrs. P.J. McGrory & Co, solicitors, of Belfast.   The facts of the case, as submitted by the applicant's representatives, may be summarised as follows.        The particular circumstances of the case        On 18 August 1992 the applicant began work in the Culloden Hotel, Belfast, as a silver service waiter.   The hotel is owned by a private company.   Initially the applicant had been doing very well and was optimistic about promotion.   On Saturday 31 October 1992 the restaurant manager informed the applicant that he was being dismissed forthwith. The applicant was given no reason whatsoever for his peremptory dismissal. Various attempts to get an explanation for the dismissal were unsuccessful.   Ultimately the general manager told the applicant on 1 November 1992 that he was dismissed because he did not meet the grade and there was no other reason.   Of all the full-time and permanent staff in the restaurant the applicant thinks that he was the only Catholic.        The applicant made a complaint to the Fair Employment Tribunal that he had been unlawfully discriminated against on the grounds of religious belief or political opinion.   The applicant and thirteen of his fifteen siblings are not involved in any politically related activity.        On 29 March 1993 the solicitors acting on behalf of the applicant's employers wrote to the Fair Employment Tribunal:        "We return herewith Notice of Appearance in relation to the      application presented by Mr Liam Devenney.   On our      instructions, the acts of which complaint is made, were      done for the purpose of protecting public safety, and in      the circumstances by virtue of Section 42 of the Fair      Employment Act 1976, the Fair Employment (Northern Ireland)      Acts do not apply so that the tribunal does not have      jurisdiction to entertain the complaint."        The Fair Employment Tribunal then of its own motion fixed a preliminary hearing for determination of the following issue:        "Whether the tribunal has jurisdiction to consider the      applicant's complaint in view of the provisions of Section      42 of the Fair Employment (Northern Ireland) Act 1976."        On 3 December 1993 the Fair Employment Commission, acting on behalf of the applicant, wrote to the solicitors acting on behalf of the applicant's employers requesting to know, inter alia, whether the Secretary of State or any other Agency had been approached with a view to obtaining a Section 42 (2) certificate.   By reply of 6 December 1993 the employers' solicitors stated:        "We today received your letter dated 3 December 1993 in      relation to the above.   You will be pleased to hear that      during the writer's holiday last week a Section 42      certificate was received from the Crown Solicitor's office      (a certified copy of which is enclosed herewith) so that it      now seems unnecessary to take any further action, and that      you may close your file in this matter."        The applicant states that he does not know the basis upon which the certificate was issued.   He has never been shown, and is not entitled to demand, sight of the information, if any, which was placed before the Secretary of State which led to the certificate being issued.   The applicant does not know whether this information is correct or incorrect, whether it is complete or incomplete, and whether it is reliable or not.   Nor does he know whether the information provided could reasonably support the view expressed in the certificate.        On 5 January 1995 the Fair Employment Tribunal, determining a preliminary question, found that the Fair Employment Act did not apply to the termination of the applicant's contract, nor to the decision summarily to terminate the contract, but that it did apply to the extent that the respondent gave a false reason for the termination, and insofar as that reason could constitute unlawful discrimination within the meaning of the Act.        Relevant domestic law        By virtue of Section 17 of the Fair Employment (Northern Ireland) Act 1976 ("the 1976 Act") it is unlawful for an employer to discriminate against a person on grounds of religious belief or political opinion in relation to employment in Northern Ireland, inter alia, by dismissing him or subjecting him to any other detriment.   By virtue of Section 24 of the 1976 Act as amended a complaint of unlawful discrimination may be presented to the Fair Employment Tribunal which is established by Statute to investigate complaints of unlawful discrimination on grounds of religious belief or political opinion.        Section 42 of the 1976 Act provides as follows:        "(1)   The Fair Employment (Northern Ireland) Acts shall not      apply to an act done for the purpose of safeguarding      national security or protecting public safety or public      order.        (2)    A certificate signed by, or on behalf of the Secretary      of State and certifying that an act specified in the      certificate was done for the purpose mentioned in sub-      section (1) shall be conclusive evidence that it was done      for that purpose.        (3)    A document purporting to be a document such as is      mentioned in sub-section (2) shall be received in evidence      and, unless the contrary is proved, shall be deemed to be      such a certificate."   COMPLAINTS        The applicant alleges a violation of Articles 6, 13 and 14 of the Convention.        Under Article 6 he complains that the issue of the Section 42 certificate deprived him of the tribunal to which he was entitled.   He points out that he does not know, and under domestic law is not entitled to know, what information caused the Secretary of State to issue the Section 42 certificate, or whether that information is accurate or not.   He also points out that it is impossible to tell whether the information before the Secretary of State reasonably leads to the conclusions reached.        He also submits that he has no effective remedy in respect of the alleged violation, and that he has been discriminated against in the enjoyment of his Convention rights.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 April 1994 and registered on 3 June 1994.        On 15 May 1995 the Commission decided to communicate the application.        On 1 July 1995, pursuant to a proposal from the respondent Government, the Commission adjourned the application pending the proceedings in Applications Nos. 20390/92 and 21322/93.        On 7 September 1996, in the light of the Commission's decision of 20 May 1996 to declare admissible Applications Nos. 20390/92 and 21322/93, the Commission decided to ask the Government whether they wished to make observations on admissibility.   The Government informed the Commission on 6 December 1996 that they did not wish to make any such observations.   THE LAW        The applicant claims that the issue of a Section 42 certificate in the present case deprived him of access to court in a way which violated Article 6, 13 and 14 (Art. 6, 13, 14) of the Convention.        The Government have stated that they do not wish to present observations on the admissibility of the case.        The Commission has had regard to the case as it stands, and to the statement by the respondent Government that they do not wish to make observations on its admissibility.   The Commission finds that the case raises serious and complex issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   The application must therefore be declared admissible, no ground for declaring it inadmissible having been established.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.         H.C. KRÜGER                                   S. TRECHSEL      Secretary                                     President   to the Commission                             of the Commission