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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

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QUINN v. THE UNITED KINGDOM

QUINN v. THE UNITED KINGDOM

LEXI