AS TO THE ADMISSIBILITY OF

                      Application No. 25646/94

                      by Stephen YOUNG

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 31 August 1994 by

Stephen YOUNG against Ireland and registered on 14 November 1994 under

file No. 25646/94;

     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

     The facts as submitted by the applicant may be summarised as

follows. The applicant is of Irish nationality, was born in 1955 and

is resident in Co. Meath, Ireland. He is represented before the

Commission by Brendan Walsh, a solicitor practising in Dublin.

Particular circumstances of the case

     On 11 July 1993 a six year old boy, who had sustained serious

head injuries the day before, died while a patient in Beaumont

Hospital. The applicant was the only neurosurgeon on duty at Beaumont

Hospital at the relevant time and was in charge of the patient's case.

A Coroner's Inquest into the death of the patient was ordered.

     In the meantime, on 27 January 1994, a member ("a T.D.") of the

Dáil (the lower house of the legislature) raised the case during a

parliamentary session. The T.D. requested the Minister for Health to:

     "instigate an immediate inquiry into the failure of staff at

     Beaumont Hospital, Dublin, to operate standard international

     neurological practices in the case of ..."

     The T.D. went on to refer to the relevant accident, the serious

head and neck injuries of the patient, his treatment in the first

hospital and his transfer to Beaumont Hospital. She then stated as

follows:

     "When arrived those on duty

     and in charge failed to operate what can only be described as

     standard, international neurological management practices for any

     serious head injury. It is that which must be questioned and

     investigated in detail. Those in Beaumont insisted that

     patient> be taken off the ventilator when he arrived, an

     extraordinary and shocking act given his serious head injury.

     Despite the protestations of the nurse and those who had

     accompanied the child ... those in charge in Beaumont Hospital

     insisted, went ahead and took the child off the ventilator.

     Within 24 hours the child's brain had swollen, ... and very

     shortly and tragically he died. ... The questionable neurological

     management practice is what I want the Minister to investigate.

     The trauma for the parents on losing their six year old boy is

     one thing but to have question marks about how their child was

     subsequently treated compounds their anguish and heartbreak. ...

     I know I can trust him to immediately instigate a report,

     followed by a medical inquiry, into why international

     neurological management practices were not operated ..."

     The Minister for Health stated in response that he had been

advised that it was inappropriate for him to make any public comment

pending the outcome of the Coroner's Inquest. However, he indicated

that on receipt of a report from Beaumont Hospital, which he had

requested, and of the result of the Coroner's Inquest, he would

determine whatever action, if any, was appropriate.

     The T.D.'s remarks were subsequently reported in the press.   On

4 February 1994 the applicant's solicitor wrote to the Chairman of the

Dáil pointing out, inter alia, that all those involved in the intimate

world of Irish medicine, a world which was of particular importance to

the applicant in light of his profession, would have known that the

applicant was in charge of the patient's treatment. While accepting

"fully" that there must be an absolute privilege to cover statements

made in parliament, the applicant's solicitor took issue with the

timing of the statement of the T.D. (the Coroner's Inquest not having

taken place) and with the apparent lack of any investigation before the

T.D. made the statement. The letter pointed out that the applicant had

offered to meet the T.D. to discuss the matter but that the T.D. had

not taken up the offer. The Chairman of the Dáil replied that the

matter would be brought to the attention of the Committee on Procedure

and Privileges shortly.

     On 2 March 1994 that committee decided that no breach or abuse

of Dáil privilege had occurred. On 28 June 1994, after a Coroner's

Inquest (the purpose of which is to establish the facts), the jury

returned a verdict by a majority of accidental death. The Coroner

commented that it would serve the interests of inquests if public

comment would be withheld until the facts are established.

     On 30 June 1994 the applicant's solicitor again wrote to the

Chairman of the Dáil pointing out that the applicant had been

completely vindicated by the Coroner's Inquest and that the T.D. had

defamed the applicant who had no recourse whatsoever except to a

committee before which he has no right of audience. He requested that

the committee reconvene and hear the applicant. The Chairman responded,

by letter dated 11 July 1994, stating that the remit of the committee

was confined to establishing whether an abuse of privilege had occurred

and that the committee had deliberated on whether the statement of the

T.D. was in conformity with the established rules of debate. The

committee decided that prima facie there had been no abuse of Dáil

privilege and that, as a result, neither the T.D. nor the applicant

were called to appear before the committee. The Chairman concluded by

stating that no further action was required to be taken.

     On 1 July 1994 the applicant's solicitor wrote to the T.D. in

question asking for an apology. The T.D responded that she was aware

of the inquest result but that the question she posed in the Dáil

debate remained to be answered. The applicant's solicitor responded on

19 July 1994 pointing out that the T.D.'s letter was bewildering in

that it signalled that she did not accept the Coroner's verdict. An

apology was again requested. This last letter was acknowledged by the

T.D..

     The family of the deceased patient have lodged a formal complaint

of professional misconduct against the applicant and an investigation

by the Medical Council is ongoing.

Relevant domestic law and practice

     Article 15.10 of the Constitution states that each house of the

Oireachtas (the legislature - of which the Dáil is one house) shall

have the power to ensure freedom of debate. Article 15.12 provides that

all official reports and publications of the Oireachtas or of either

house thereof and utterances made in either house wherever published

shall be privileged. Article 15.13 goes on to provide that:

     "The members of each house of the Oireachtas ... shall not,

     in respect of any utterance in either House, be amenable to

     any court or any authority other than the House itself."

     After each general election various T.D.s are appointed to the

Committee on Procedure and Privileges which committee considers matters

of procedure generally, recommends any necessary changes to the

Standing Orders and considers and reports, as and when requested to do

so, on the privileges attaching to T.D.s.

COMPLAINTS

1.   The applicant complains under Article 6 of the Convention about

the lack of a fair and public hearing within a reasonable period of

time by an independent and impartial tribunal established by law

through which he could have enforced his constitutionally protected,

and his civil right, to his good name. The only hearing available was

that of the Committee on Procedure and Privileges which, for a number

of reasons, was insufficient.

      The applicant also complains under Article 8 of the Convention

in that his private life was the subject of an arbitrary interference

through false statements relating to him by a public authority causing

the applicant loss and damage.

2.   He further complains about being deprived of his good name and

reputation in the exercise of his profession contrary to Article 1 of

Protocol 1.

3.   The applicant further complains under Article 13 of the

Convention about the lack of an effective domestic remedy in respect

of the attack on his good name, his private life and his property.

THE LAW

     The applicant raises a number of complaints in relation to

statements made by a T.D. to which an immunity attaches pursuant to the

relevant provisions of Article 15 of the Irish Constitution. The

Commission finds that it is not necessary to determine whether the

applicant's recourse to the Committee on Procedure and Privileges

interrupted the running of the six month period referred to in Article

26 (Art. 26) of the Convention because the application is, in any

event, inadmissible for the reasons set out below.

1.   In the first place, the applicant essentially complains under

Article 6 para. 1 (Art. 6-1) of the Convention that he had no access

to a fair and public hearing by an independent and impartial tribunal

through which he could have enforced his constitutionally protected,

and his civil right, to his good name. The only tribunal which

considered the matter was the Committee on Procedure and Privileges.

However, he argues that the relevant hearing of that committee was in

private and he could not participate in any way. The committee was not,

according to the applicant, independent (being made up of T.D.s), it

only considered if the relevant T.D.'s statement was made in the proper

course of debate and it did not determine the question as to whether

the applicant's good name had been attacked and what redress should be

provided.

     Secondly, the applicant also complains under Article 8 (Art. 8)

of the Convention that his private life was the subject of an arbitrary

interference through false statements relating to him by a public

authority causing the applicant loss and damage.

     Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention, insofar

as relevant read as follows:

Article 6 (Art. 6)    "1. In the determination of his civil rights ...

                      , everyone is entitled to a fair and public

                      hearing ... by an independent and impartial

                      tribunal established by law. ..."

Article 8 (Art. 8)    "1. Everyone has the right to respect for his

                      private ... life, ...

           2.  There shall be no interference by a public authority

           with the exercise of this right except such as is in

           accordance with the law and is necessary in a democratic

           society in the interests of ..., public safety ..., for the

           protection of health ..., or for the protection of the

           rights and freedoms of others."

     The Commission recalls that it previously rejected a complaint

under Article 6 para. 1 (Art. 6-1) of the Convention that there had

been a failure to determine civil rights by reason of parliamentary

immunity (No. 3374/67 Collection of Decisions 29, p. 29). In that case,

the Commission considered that Article 6 para. 1 (Art. 6-1) of the

Convention was to be interpreted subject to the traditional recognition

by Contracting States of that immunity. Subsequently, the Commission's

Report in the Golder case (No. 4451/70, Comm. Report 1.6.73, p. 44

para. 93) clarified that parliamentary immunity involves a lack of

access to the defendant rather than to court and that the right of

access to court, contained in Article 6 para. 1 (Art. 6-1) of the

Convention, does not require unlimited jurisdiction.

     More recently the Court has had occasion to consider the concept

of privilege in its Fayed judgment (Eur. Court H.R., Fayed judgment of

21 September 1994, Series A no. 294-B) and the Commission considers it

appropriate to follow the approach of the Court in that case for the

purposes of the present application. Accordingly, the Commission does

not consider it necessary to determine, in the circumstances of this

case, the precise nature of the privilege accorded by Article 15 of the

Irish Constitution - namely, whether it is of a procedural nature

removing the jurisdiction of the courts and thus within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention or whether it is of a

substantive nature limiting the extent of a civil right and thus more

properly considered within the scope of Article 8 (Art. 8) of the

Convention - because the same central issues of legitimate aim and

proportionality are posed by these two complaints (Eur. Court H.R.,

Fayed judgment loc. cit., pp. 49-51, paras. 65-68).

     The Commission has therefore considered the legitimacy of the

aims pursued by the relevant provisions of Article 15 of the Irish

Constitution together with the proportionality between the means

employed and those aims in determining the applicant's complaints under

Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention about an

attack on his reputation for which he had no recourse to the courts.

     The underlying aim of the immunity accorded to T.D.s is clearly

in furtherance of the public interest to allow T.D.s to engage in

meaningful debate and represent their constituents on matters of public

interest (in the present case public safety and the quality of medical

treatment in hospitals) without having to restrict their observations

or edit their opinions because of the danger of being amenable to a

court or other such authority.

     Turning to whether the immunity was proportional in the

circumstances of the present case the Commission recalls, in the first

place, that in the above mentioned Fayed judgment the Court did not

find it decisive even if the relevant privilege was to be considered

as absolute (Fayed judgment, loc. cit., p. 53, para. 77).

     The Commission notes that the impugned statement did not mention

the applicant by name and it is difficult to conceive of a manner in

which a T.D. could address a comment to the Minister for Health

questioning treatment afforded to a particular patient without, at

least indirectly, referring to the consultant in charge of that

patient's treatment. Having found the aim of free debate in the public

interest legitimate, it is not open to the Commission to apply the test

of proportionality in such a manner as to render meaningful debate

impracticable (Fayed judgment, loc. cit., p. 55, para. 81). In

addition, the Commission notes the immediate and restrained response

of the Minister for Health in reply to the T.D.'s statement.

     Moreover, it is not unreasonable to assume that the small circle

of colleagues, who would have made the connection between the T.D.'s

statement and the applicant, would have equally noted the outcome of

the Coroner's Inquest, which inquest the applicant's solicitor stated

completely vindicated his client's position. Furthermore, it is noted

that the applicant himself, by way of his solicitor's letter of

4 February 1994, "fully" accepted that there must be an absolute

privilege to cover statements made in parliament.

     In such circumstances the Commission considers that a reasonable

relationship of proportionality could be said to exist between the

immunity accorded to T.D.s in relation to statements made in parliament

and the legitimate aim of free debate pursued in the public interest.

     In light of the above, the Commission does not consider it

necessary to determine the contribution to the proportionality of the

immunity by the review conducted by the Committee on Procedure and

Privileges. While such a review may be relevant to the question of

proportionality - even where it does not provide a determination of

whether the applicant was defamed or not - (Fayed judgment, loc. cit.,

p. 54, para. 78), the Commission considers the matters referred to

above sufficient to demonstrate the relevant proportionality.

     Accordingly, the Commission concludes that the applicant's

complaints under Articles 6 para. 1 and 8 (Art. 6-1, 8) of the

Convention are manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.   The applicant further complains about being deprived of his good

name and reputation in the exercise of his profession contrary to

Article 1 of Protocol 1 (P1-1).

     Even assuming that the applicant's complaints under Article 1 of

Protocol 1 (P1-1) fall within the scope of that Article, the Commission

has found as follows. Insofar as the applicant complains about an

attack made on his professional reputation without his having any

recourse to the courts, the Commission considers that this does not

give rise to any issue separate to those dealt with under Articles 6

para. 1 and Article 8 (Art. 6-1, 8) of the Convention. In addition and

insofar as the applicant's complaint under Article 1 of Protocol 1

(P1-1) relates to the consequent negative impact of the T.D.'s

statement on his earnings, practice and career, the Commission

considers that such a complaint has not been substantiated.

     The Commission therefore concludes that the applicant's

complaints under Article 1 of Protocol 1 (P1-1) are manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   Finally, the applicant complains under Article 13 (Art. 13) of

the Convention about the lack of an effective domestic remedy, due to

the privilege accorded to T.D.s, in relation to the attack on his good

name, his private life and his property.

     However, the Commission recalls that insofar as the applicant's

complaints fall within the scope of Article 6 (Art. 6) of the

Convention, the guarantees of Article 13 of the Convention are

superseded by those of Article 6 para. 1 (Art. 6-1) of the Convention

(see, for example, No. 13021/87, Dec. 4.7.88, D.R. 57 p. 268).

Accordingly, the Commission does not consider that such complaints give

rise to any separate issue under Article 13 (Art. 13) of the

Convention.

     In addition and insofar as the applicant's complaints fall within

the scope of Article 8 (Art. 8) of the Convention or of Article 1 of

Protocol 1, the Commission recalls the constant case-law of the

Convention organs to the effect that Article 13 (Art. 13) of the

Convention does not require a remedy in domestic law for all claims

alleging a breach of the Convention; the claim must be an arguable one

(Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A

no. 131, p. 23, para. 52). In light of the above conclusions of the

Commission concerning the applicant's complaints under Article 8 and

Article 1 of Protocol 1 (Art. 8, P1-1), the Commission finds that the

applicant does not have an arguable claim of a breach of those rights

and freedoms which warrants a remedy under Article 13 (Art. 13) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

   (M.F. BUQUICCHIO)                            (C.L. ROZAKIS)