Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16221/90

by Colm McKENNA

against Ireland

The European Commission of Human Rights sitting in private

on 17 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 December 1989

by Colm McKenna against Ireland and registered on 27 February 1990

under file No. 16221/90;

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 applicant is an Irish citizen born in 1962 and resident in

County Donegal. He is represented by Messrs. James P. Sweeney & Co.,

solicitors practising in County Donegal. The facts as submitted by the

applicant may be summarised as follows.

Pursuant to the 1956 Gambling and Lotteries Act, the Donegal

County Council (hereinafter the "Council") operated a system of

licensing of gambling arcades. The applicant operated gambling

arcades under licence since 1980.

On 19 January 1986, Donegal County Council held a special

meeting to consider the motion proposed by a councillor that Donegal

County Council, pursuant to Section 13 of the 1956 Act, rescind the

adoption of Part III of the Act in respect of the whole administrative

area of the said council. There had been previous unsuccessful

motions to this effect, a number of councillors and pressure groups

having campaigned against gaming.

The minutes of the meeting record that the proposer of the motion

gave as a reason for the rescission the evils of gaming machines and the

distress that they were causing among families in the poorer section of

the community. At the conclusion of the meeting the motion was adopted.

In a case McEniff v. Donegal County Council (No. 2034 of 1987)

an action was pursued challenging the validity of the resolution on

the ground that there had not been proper notice of the meeting.

Following a hearing on 7 March 1989, Mr Justice Egan dismissed the

claim finding that the proper procedure had been followed. On

17 November 1989, the Supreme Court struck off the appeal against this

decision for want of prosecution. Following these decisions, the

Circuit Court judge of the region on 23 and 28 November 1989 dismissed

all appeals (including the applicant's) against the refusal to grant

further licences, stating that he was bound by the Supreme Court decision.

Relevant domestic law and practice

The Gaming and Lotteries Act 1956 provides in Part III for

the licensing of amusement halls and funfairs.

Section 13 provides as follows:

"A local authority may by resolution adopt this Part in

respect of the whole or a specified part of its administrative area

and may by resolution rescind such adoption."

COMPLAINTS

The applicant complains that as a result of the revocation of

his licence he will lose his livelihood and his property rights over

his machines and buildings.

He complains that other forms of gambling are still legal and

that there is no provision of compensation or means of redress. He

invokes Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant complains that the revocation of his licence to

operate his gambling arcades deprives him of his livelihood and

interferes with his property rights contrary to Article 1 of Protocol

No. 1 (P1-1) to the Convention, which provides:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject to

the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

The Commission notes that the applicant has not instituted

proceedings in the High Court challenging the constitutionality of the

provision of the 1956 Act which he complains deprived him of his

livelihood. The Commission finds it unnecessary to decide however

whether he has in fact exhausted remedies as required by Article 26

(Art. 26) of the Convention for the reasons set out below.

The Commission has considered whether the licence to operate a

gambling arcade can give a licence-holder a right which is protected

under Article 1 of the First Protocol (P1-1). The Commission finds that the

economic interests connected with the applicant's gambling business

were "possessions" within the meaning of the above provision. The

rescission of the resolution allowing licences of amusement arcades

prohibited the continuation of the applicant's business and in the

circumstances constituted an interference with his rights under

Article 1 of Protocol No. 1 (P1-1) (see e.g. Eur. Court H.R., Van

Marle and Others judgment of 26 June 1986, Series A no. 101, p. 13,

paras. 41-42).

The Commission has therefore considered whether the revocation

was justified under the second paragraph of this provision as a

control of the use of property in accordance with the general

interest, which requires an examination of the lawfulness and purpose

of the interference and of its proportionality (see e.g. Eur. Court

H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 139, p.

22-24, paras. 56-62).

The Commission notes that the rescission was based on Section

13 of the 1956 Act and that it was motivated by the interests of the

community. It therefore is satisfied that it was a measure in

accordance with law which pursued the general interest. On the question

of proportionality, the Commission notes that the applicant's licence

to operate his business had always been subject to the local

authority's unfettered power to revoke its resolution allowing the

licensing of amusement arcades. The applicant must also have been

aware that part of public opinion had been adverse to the continuation

of these types of businesses in the area and that individual

councillors and pressure groups had campaigned for rescission under

Section 13.

In view of the wide discretion enjoyed by States in this area,

the Commission finds in the circumstances of this case that the

removal of the applicant's licence was justified under the second

paragraph of Article 1 of Protocol No. 1 (P1-1).

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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McKENNA v. IRELAND

McKENNA v. IRELAND

LEXI