Lexploria

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

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FLATTERY v. IRELAND

FLATTERY v. IRELAND

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