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You are here: BAILII >> Databases >> European Court of Human Rights >> AIREY v. IRELAND (ARTICLE 50) - 6289/73 [1981] ECHR 1 (6 February 1981) URL: http://www.bailii.org/eu/cases/ECHR/1981/1.html Cite as: [1981] ECHR 1, (1981) 3 EHRR 592 |
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In the Airey case,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. G. WIARDA, President.
Mr. THÓR VILHJÁLMSSON,
Mr. W GANSHOF VAN DER MEERSCH,
Mr. D. EVRIGENIS,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. B. WALSH,
and also Mr. M.-A. EISSEN, Registrat, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 24 November 1980 and
31 January 1981,
Delivers the following judgment, which was adopted on the
last-mentioned date, on the application in the present case of
Article 50 (art. 50) of the Convention:
PROCEDURE AND FACTS
1. The Airey case was referred to the Court by the European
Commission of Human Rights ("the Commission") in May 1978. The
case originated in an application against Ireland lodged with the
Commission in 1973 by Mrs. Johanna Airey.
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 8 to 12 of the Court's judgment of 9 October 1979
(Series A no. 32, pp. 6-8).
2. By that judgment, the Court held, inter alia, that there had been
breach of Articles 6 par. 1 and 8 (art. 6-1, art. 8) of the Convention
by reason of the fact that the applicant did not enjoy an
effective right of access to the Irish High Court for the purpose of
petitioning for a decree of judicial separation (points 4 and 6 of the
operative provisions and paragraphs 20-28 and 31-33 of the reasons,
ibid., pp. 19, 11-16 and 17).
3. At the hearing of 22 February 1979, the applicant's counsel had
informed the Court that, should it find a breach of the Convention,
her client would seek just satisfaction under Article 50 (art. 50)
under three headings: effective access to a remedy for breakdown of
marriage; monetary compensation for her pain, suffering and mental
anguish; and monetary compensation for costs incurred, mainly
ancillary expenses, fees for lawyers and other special fees.
In its aforesaid judgment, the Court reserved the whole of the
question of the application of Article 50 (art. 50). The Commission was
invited to submit to the Court, within two months from the delivery
of the judgment, the Commission's observations on that question,
including notification of any settlement at which the Government of
Ireland ("the Government") and the applicant might have arrived
(point 8 of the operative provisions and paragraphs 36-37 of the
reasons, ibid., pp. 18-19).
4ø. The above-mentioned time-limit was extended by the President
several times, on the last occasion until 30 July 1980.
On 17 July 1980, the Secretary to the Commission, acting on the
Delegates' instructions, transmitted to the registry copies of
correspondence setting out in detail the course of negotiations
between the Government and the applicant and revealing that the
applicant had rejected a "without prejudice" offer by the Government
to pay to her 3,140 Irish pounds in full and final satisfaction of her
claims. At the same time, the Secretary stated that the Delegates were
of opinion that there was no useful basis on which efforts to reach a
settlement could be pursued and that they submitted to the Court that
an award under Article 50 (art. 50) should be made "on the basis of
the above offer".
By letter of 21 August 1980, the Agent of the Government informed the
Deputy Registrar, inter alia, that the Government consented to an
award of £ 3,140, On 8 october, the Secretary to the Commission
transmitted to the Registrar a telex received from the applicant's
legal representative indicating that the applicant did not consider
this amount to be fair and reasonable and requested an award in line
with her earlier submissions (see paragraph 5 below). On
10 November, the Agent wrote to the Registrar to advise him that,
although her Government disputed the applicability of Article 50
(art. 50) to the present case and although they considered a sum of
£ 2,140 - which they had initially offered by way of settlement -
to be an adequate award, they remained willing to consent to an award
of £ 3,140.
5. During the course of the negotiations, proposals for a settlement
had been put forward on the applicant's behalf which may be
summarised as follows:
a) Mrs. Airey sought an undertaking from the Government to indemnify
her against any future legal costs and expenses reasonably incurred in
pursuing before the Irish courts the remedy of judicial separation
("the domestic costs").
b) Compensation was requested in respect of:
- travelling and miscellaneous expenses: £ 140;
- loss on re-housing: £ 1,500;
- legal costs and expenses referable to the proceedings before the
Convention institutions ("the Strasbourg costs"): £ 9,984.41.
c) It was alleged that Mrs. Airey had suffered severe mental anxiety
and that her own and her children's health had been adversely
affected; further, her inability for financial reasons to obtain a
maintenance or garnishee order in the High Court was said to have
caused her constant financial difficulties, to have obliged her to
take unsuitable employment and to have resulted in her children's
being denied normal educational facilities and opportunities. The
applicant's solicitors suggested a figure of £ 2,000 in respect
of this item.
6. On 9 September 1980, Mrs. Airey applied, under the Scheme of Civil
Legal Aid and Advice introduced in Ireland on 15 August 1980, for
legal aid in order to petition for judicial separation. However, the
competent office informed her on 8 October that she appeared to be
ineligible on the basis of the means test.
On 10 November, the Secretary to the Commission informed the Registrar
that, should the applicant not be granted legal aid, the Delegates
would regard it as an important element in any award under Article 50
(art. 50) that her legal costs for a separation action be underwritten
by the Government. The Secretary also transmitted to the registry a
copy of a letter received from the applicant's solicitors,
Messrs. Walsh O'Connor and Company, in which they requested that, if
she were denied legal aid, she should be awarded an additional sum to
enable her to instruct solicitor and counsel to represent her in
separation proceedings.
On 21 November, the Agent of the Government wrote to the Registrar in
the following terms.
"...
In the light of the information provided by Walsh, O'Connor and
Company indicating that Mrs. Airey, whose financial position appears
to have improved since the events which gave rise to the Court's
judgment in her case, may not be granted legal aid under the Scheme
and in view of the course of the proceedings in this particular
case, my Government has decided to underwrite her reasonable costs
of retaining Solicitor and Counsel for the purpose of taking
proceedings for a legal separation, such costs to be taxed as
between solicitor and client (i.e. independently assessed by the
Courts) in default of agreement thereon between Mrs. Airey and the
Government.
..."
The Secretary to the Commission transmitted to the Registrar on
17 December a copy of a letter of 11 December from Messrs. Walsh
O'Connor and Company, which read:
"... We quote from our client's letter of instructions to us 'I
accept the Government's offer of costs for my legal separation but
reject their offer of £ 3,140 compensation' etc., from which
you will see that we will be instituting proceedings against
Mr. Airey on behalf of Mrs. Airey claiming a legal separation and
relying on the Government's undertaking to underwrite our client's
costs in the matter.
..."
7. In accordance with a request by the President of the Chamber, the
Secretary to the Commission filed certain documents with the
registry on 20 November.
8. Having consulted, through the Registrar, the Agent of the
Government and the Delegates of the Commission, the Court decided on
24 November 1980 that there was no call to hold oral hearings.
Mr. O'Donoghue, the elected judge of Irish nationality who had taken
part in the adoption of the judgment of 9 October 1979 and whose term
of office expired on 20 January 1980, was in principle called upon to
continue to sit in this case (Article 40 par. 6 of the Convention
and Rule 2 par. 3 of the Rules of Court) (art. 40-6). However, on
account of his inability to attend, his place was taken by his
successor, Mr. Walsh.
AS TO THE LAW
I. The applicability of Article 50 (art. 50)
9. Article 50 (art. 50) of the Convention reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the present Convention, and if the internal law of the said
Party allows only partial reparation to be made for the consequences
of this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party."
Although the Government appeared to question the applicability of
this provision in the present case (see paragraph 4 in fine above),
they have not indicated their reasons for so doing.
The Article (art. 50) is applicable, in the opinion of the Court. It
recalls that there is no room in this context to distinguish between
acts and omissions; again, Mrs. Airey is clearly an "injured party"
- a phrase synonymous with the term "victim" as used in Article 25
(art. 25) - in the sense that she was the person directly affected by
the failure to observe the Convention, which the Court found in its
judgment of 9 October 1979 (see the De Wilde, Ooms and Versyp judgment
of 10 March 1972, Series A no. 14, pp. 10-11, par. 22-23). Finally, it
has not been suggested that Irish law allows complete reparation, as
that concept is understood in the Court's case-law (see, inter alia,
ibid., pp. 9-10, par. 20), to be made for the consequences of that
failure.
II. The application of Article 50 (art. 50)
10. Since its judgment of 9 October 1979, the Court has been informed
of an agreement reached between the respondent State and the
applicant as regards the claim relative to the domestic costs (see
paragraphs 5 (a) and 6 above). As is required by Rule 50 par. 5 of
its Rules, the Court has verified the "equitable nature" of this
agreement and, having regard to the absence of objection on the part
of the Commission's Delegates, it entertains no doubts on the
matter. Accordlingly, the Court takes formal note of the agreement
and concludes that there is no longer any neccessity for it to
consider this claim further.
11. During the settlement negotiations (see paragraph 4 above), the
Government did not contest the amount of £ 140 claimed for
travelling and miscellaneous expenses but rejected the applicant's
claims in respect of her alleged loss on re-housing and the
Strasbourg costs (see paragraph 5 (b) above). The Court will examine
the last two items first.
12. Mrs. Airey moved house in 1977. As a tenant, she had certain
possibilities of purchasing her home under the Tenant Purchase
Scheme operated by her landlord, Cork Corporation. She claimed that
her move, which she attributed to her inability to gain effective
access to a remedy for breakdown of marriage, the consequent
deterioration in her position and her apprehension that her husband
might attempt to return and live with her, had occasioned her a loss
of £ 1,500 representing the difference in market value, as at
July 1977, between the two premises in question.
The Government replied that the applicant had not established any
loss, her interest in both premises being no more than that of a
tenant. They added that there was no causal relation between her
decision to move and the absence, in 1977, of legal aid for
separation proceedings.
Assuming that Mrs. Airey has suffered the loss which she alleged, the
Court does not consider that it can be attributed to the violations
found in its judgment of 9 October 1979. Her decision to move appears
to have been motivated not by the fact that she did not enjoy an
effective right of access to the High Court for the purpose of
petitioning for judicial separation but rather by her general
situation underlying her wish to have such access and, in particular,
by her fear of molestation by her husband. Besides, even if she had
obtained a separation decree, she would have remained subject to the
risk of the molestation which rightly or wrongly she apprehended. The
Court accordingly rejects this claim.
13. The same must apply to the claim in respect of the Strasbourg
costs. Mrs. Airey, who alone has the status of "injured party" for the
purposes of Article 50 (art. 50), had the benefit of free legal aid
before the Commission and then, after reference of the case to the
Court, in her relations with the Delegates (addendum to the
Commission's Rules of Procedure). She has not established that she
paid or is liable to pay to her lawyers additional fees for which she
might seek reimbursement; it follows that, in this respect, she has
borne no costs herself and has suffered no loss capable of being
compensated under Article 50 (art. 50) (see the Luedicke, Belkacem and
Koç judgment of 10 March 1980, Series A no. 36, p. 8, par. 15).
14. The Government have expressed their continuing willingness to
consent to an award of £ 3,140 (see paragraph 4 in fine above).
The Court considers this figure to be fair and reasonable and
accordingly affords to the applicant, as far as the remainder of her
claims is concerned, satisfaction of that amount.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes formal note of the agreement between the Government and the
applicant concerning the domestic costs;
2. Rejects the applicant's claims in respect of her alleged loss on
re-housing and the Strasbourg costs;
3. Holds that Ireland is to pay to the applicant, in respect of the
remainder of her claims, the sum of three thousand one hundred and
forty Irish pounds (£ 3,140).
Done in English and in French, the English text being authentic, at
the Human Rights Building, Strasbourg, this sixth day of February,
one thousand nine hundred and eighty-one.
For the President
Signed: Léon LIESCH
Judge
Signed: Marc-André EISSEN
Registrar