YOUNG v. IRELAND
Doc ref: 25646/94 • ECHR ID: 001-2687
Document date: January 17, 1996
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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)