CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 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. 33694/96                       by Eamon QUINN                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 8 August 1996 by Eamon QUINN against the United Kingdom and registered on 7 November 1996 under file No. 33694/96;        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   A.    The particular circumstances of the case        The applicant is an Irish citizen born in 1967 and resident in County Armagh, Northern Ireland. He is represented before the Commission by Mr. P. Mageen, a Solicitor working for the Committee on the Administration of Justice, based in Belfast. The facts of the case as submitted by the applicant may be summarised as follows.        In August 1992 the applicant applied for a position with the United Kingdom Passport Agency in Belfast. He was invited for interview and completed a security questionnaire. He was offered the post in December 1992 and began work on 4 January 1993. However two days later he was told that his appointment was being terminated as he had not received security clearance.        The applicant lodged a complaint with the Northern Ireland Fair Employment Tribunal alleging that he had been unlawfully discriminated against on the basis of his religious belief and/or his political opinion. The applicant is of the Catholic faith. However, in September 1993 the Secretary of State for the Home Department issued a certificate under Section 42(2) of the Fair Employment Act 1976 ("a Section 42 certificate") in which he certified that the decision to terminate the applicant's appointment was taken for the purpose of safe-guarding national security and of protecting public safety and public order.        The applicant subsequently applied for judicial review of the section 42 certificate. In April 1996 after a hearing, the application for judicial review was refused by the High Court of Justice for Northern Ireland. The applicant was advised by counsel that any further appeal would be futile.   B.    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 complains that he was denied a fair and public hearing by an independent and impartial tribunal in breach of Article 6. He also complains that his rights under Article 13 were violated as he had no effective remedy before a national authority to challenge the alleged violation of his rights under the Convention. The applicant considers that the actions of the State were motivated by religious and/or political discrimination in violation of Article 14 and that his private and family life, home and correspondence were interfered with in breach of Article 8. The applicant further alleges that his right to freedom of thought, conscience, religion and freedom of expression were violated in breach of Articles 9 and 10 of the Convention.   THE LAW   1.    The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which provides, so far as relevant, as follows.        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law ..."        The Commission must determine whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the circumstances of the applicant's dismissal and his inability to challenge this in the courts.        The Commission notes that the issue the applicant sought to bring before the tribunal was whether his dismissal amounted to unlawful discrimination. The proceedings the applicant sought to bring would have determined whether the termination of his employment was lawful. There was accordingly a dispute over a "right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The next matter for the Commission is whether that "right" was a "civil" one.        The Commission recalls that in the case of Neigel v. France (Eur. Court HR, judgment of 17 March 1997, Reports 1997, paras. 43 and 44), the Court noted that the law of many member States of the Council of Europe discloses a basic distinction between civil servants and employees governed by private law, which led it to hold that "disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 para. 1 (Art. 6-1)" (para. 43). In that case, the Court found that the applicant's request for reinstatement to the permanent post of shorthand typist which she had previously held, related to her "'recruitment' , her 'career' and the 'termination of [her] service'. It did not therefore concern a 'civil' right within the meaning of Article 6 para. 1 (Art. 6-1)."        The Commission, too, has held that the dismissal of a high ranking soldier was a matter where the State acted in the field of public law such that no "civil rights" were at issue (see, for example, E.S. v. Germany, No. 23576/94, Dec. 29.11.95).        It is true that in the present case, the domestic rules make no special provision for civil servants and the applicant was not prevented from bringing his case to the Fair Employment Tribunal because of his status working for a government agency but rather due to the section 42 certificate. However this was also the case in Balfour v. the United Kingdom (No. 30976/96, Dec. 2.7.97), which concerned an applicant who worked for the Foreign and Commonwealth Office and was refused access to certain documents relevant to proceedings in the normal domestic courts concerning his dismissal, where the Commission nevertheless held that no "civil rights" were involved due to the public nature of his former employment. Further the Commission considers that in the light of the Court's judgment in the Neigel case, the manner in which domestic law treats employees of the State cannot be the prime consideration in determining whether a dispute over a right is "civil": the question is one for the Convention organs to determine.        Accordingly the Commission finds that the dispute between the applicant, a civil servant, and his employer, the State, did not determine his "civil" rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1) therefore does not apply in the present case.        It follows that this part of the application is incompatible ratione materiae with the provision of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    The applicant also alleges a violation of Article 14 of the Convention, taken together with Article 6 (Art. 14+6).        The Commission recalls that where Article 6 (Art. 6) proves to be inapplicable, Article 14 (Art. 14) of the Convention cannot be combined with it (cf. mutatis mutandis Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, para. 50).        The Commission has found that Article 6 (Art. 6) of the Convention does not apply to the proceedings in the present case. It follows that the Commission cannot deal with the complaint under Article 14 (Art. 14) in combination with it.        It follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.    The applicant complains that his dismissal, the issuing of a section 42 certificate and the consequential inability to pursue the matter through the courts was motivated by political and religious discrimination on the part of the respondent State. He complains of a breach of Articles 8, 9 and 10 (Art. 8, 9, 10).        The Commission notes that the Section 42 certificate stated that the reason for the termination of the applicant's employment was in order to safeguard national security and protect public safety and public order. The very existence of such a certificate meant there was no judicial investigation into the circumstances under which it was issued and there is nothing in the application to support the complaint of political and religious discrimination. The Commission does not consider the fact that the applicant was a Catholic and that the majority of Section 42 certificates have been issued against Catholics, of itself amounts to evidence that the applicant was the subject of religious or political discrimination.        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.   4.    The applicant complains that he has no effective remedy in respect of the matters complained of under domestic legislation in violation of Article 13 (Art. 13) of the Convention.        Article 13 (Art. 13) of the Convention 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."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention. For similar reasons, they cannot be regarded as "arguable".        It follows that this part of the application is incompatible ratione materiae with the provision of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.          M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                       of the First Chamber