CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1998

.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 }                        Application No. 28995/95                     by Barry, James and Noelle FLATTERY                     against Ireland          The European Commission of Human Rights (First Chamber) sitting in private on 8 July 1998, the following members being present:             MM    M.P. PELLONPÄÄ, President                N. BRATZA                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                B. CONFORTI                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 21 August 1995 by Barry, James and Noelle FLATTERY against Ireland and registered on 22 November 1995 under file No. 28995/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      23 July 1996 and the observations in reply submitted by the      applicants on 12 September 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Irish citizens born in 1960, 1955 and 1951, respectively. They all reside in County Meath, Ireland. The first applicant and the third applicant are farmers by profession and the second applicant is a Development Officer. Until recently the applicants were represented before the Commission by Ms. Julie O'Connell, a solicitor practising in Dublin. The facts as submitted by the applicants may be summarised as follows.        The second applicant and his mother, Mary Flattery, were adjudged bankrupt on 29 May 1987 and on 2 June 1987. None of the creditors of the second applicant or Mary Flattery elected to pursue their claims in bankruptcy and the only issue which remained to be determined was the amount of the Official Assignee's fees (the State official who deals with the administration of bankruptcy proceedings) to be paid by the second applicant and Mary Flattery before they would be entitled to be discharged from bankruptcy.        The Official Assignee calculated his fees at £51,000.00. The second applicant and Mary Flattery contested this amount and, on 18 January 1988, the matter was heard by a judge of the High Court. Judgment was reserved.        In July 1989 and June 1990 the second applicant and Mary Flattery, respectively applied to be discharged from bankruptcy. Consent for such discharges was given on the basis that £26,819.00 be lodged by the second applicant and £25,242.50 by Mary Flattery with the Official Assignee in light of the outstanding issue of the Official Assignee's fees - the judgment of the High Court had not yet been delivered.        Apart from £8012.16 (representing the balance of the proceeds of the sale of the home of the second applicant in Dublin, which money was already held by the Official Assignee), the remainder of the money was lodged by the first applicant (the second applicant and Mary Flattery not having the resources themselves).        On 1 May 1995 Mary Flattery died.        Subsequently, the applicants' solicitors lodged papers in the High Court dated 13 and 14 June 1995 to apply for the release of the money lodged pending the delivery of the High Court judgment, an action taken mainly in an attempt to highlight the delay as counsel was of the opinion that there was little chance that the money would be released on foot of the application. The documents lodged included an affidavit sworn by the first applicant exhibiting the various attendance notes, file notes and letters evidencing the various attempts which had been made already to obtain delivery of the judgment. Within hours of the papers being lodged the applicants' solicitors were advised that the judgment would be delivered later that week.        The High Court judgment was delivered on 16 June 1995. The amounts, previously fixed as payable by the second applicant and Mary Flattery, were set aside as excessive, the court finding that the second applicant and Mary Flattery were each to pay £750 in fees to the Official Assignee. The balance of the money already lodged was to be released with interest.   COMPLAINTS        The applicants complain about the delay in the delivery of the judgment in relation to the Official Assignee's fees and invoke Article 6 para. 1 of the Convention in this respect.        The applicants also complain that the retention of the money, which had been lodged for over five years with the Official Assignee pending the High Court judgment, constituted an interference with possessions contrary to Article 1 of Protocol 1.        The applicants further claim that there was no effective domestic remedy contrary to Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 21 August 1995 and was registered on 22 November 1995.        On 15 May 1996 the Commission decided to communicate the applicants' complaints as regards the length of proceedings under Article 6 para. 1, Article 13 and Article 1 of Protocol No. 1.        On 23 July 1996 the Government submitted their observations and the observations in reply were submitted by the applicants on 12 September 1996.        By letter dated 15 May 1997 the Government indicated that the parties wished to explore a settlement of the matter. By letter dated 9 September 1997 the applicants confirmed that the parties had agreed in principle to submit the matter to domestic arbitration and that negotiations were taking place as to the terms of the arbitration. The parties subsequently informed the Commission of progress in those negotiations by the applicants' letters dated 15 October and 28 November 1997 and 27 February 1998 and by the Government's letters dated 20 October and 9 December 1997 as well as 2 March, 8 April and 15 May 1998.        By letter dated 29 June 1998 the Government confirmed agreement and signature of the arbitration terms and furnished a copy of the signed Arbitration Agreement dated 18 June 1998 to the Commission. By letters dated 29 June and 1 July 1998 the applicants confirmed their signature of the Arbitration Agreement and expressed their wish to withdraw the present application.     REASONS FOR THE DECISION        The Commission recalls that by letters dated 29 June and 1 July 1998 the applicants and the Government informed the Commission that they had signed a detailed Arbitration Agreement with a view to a settlement of the present application. Consequently, the applicants, by letters dated 29 June and 1 July 1998, informed the Commission of their wish to withdraw the present application.        In light of these events, the Commission finds that the applicants do not intend to pursue the present application within the meaning of Article 30 para. 1(a) of the Convention. The Commission, furthermore, having regard to Article 30 para. 1 in fine, finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of the application.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.       M.F. BUQUICCHIO                           M.P. PELLONPÄÄ     Secretary                                 President to the First Chamber                     of the First Chamber