Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15601/89

by M.O.

against Ireland

The European Commission of Human Rights sitting in private

on 10 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

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 5 December 1988

by M.O. against Ireland and registered on 12 October 1989 under file

No. 15601/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 6 September 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written obsrvations on its

admissibility and merits;

- the obsevations submitted by the respondent Government

on 20 December 1990 and the observations in reply submitted

by the applicant on 2 May 1991;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the parties, are as follows:

The applicant is an Irish citizen born in 1944. He is a civil

servant and resides at present in Dublin. He is married to a citizen

of the Soviet Union and they have two children (G. and M.) born

in 1977 and 1979.

In 1988 the applicant's wife commenced proceedings before the

Circuit Court for divorce a mensa et thoro (judicial separation) on

grounds of cruelty and seeking custody of the children. The applicant

counterclaimed, also seeking custody of the children and an injunction

restraining his wife from residing in the family home. On 11 May

1988, after the hearing of evidence and the submissions of the parties,

the Circuit Court dismissed both the applications of the applicant and

his wife, ordered that the children be returned to thefamily home

and awarded custody of the children to both the applicant and his wife.

On 12 May 1988 his wife made an unsuccessful attempt in the

High Court to stay the implementation of the Circuit Court's Order.

However an appeal by way of rehearing against the decision of the

Circuit Court was listed for hearing before the High Court on 1 June 1988.

Before the appeal hearing could take place, the applicant

states that he was obliged to discontinue with the services of his

legal representatives since he was not in a financial position to pay

their costs. By letter dated 15 April 1988, the applicant's solicitor

informed the applicant that she felt it necessary to apply to the

court to come off the record since it appeared he had lost confidence

in her and that their solicitor-client relationship had totally broken

down. By letter dated 20 May 1988, the applicant's solicitor sent her

bill of costs requesting payment before the court hearing and warning

that further fees would be due for that hearing. When the hearing

came before the High Court the applicant informed the judge that he

was not legally represented and sought an adjournment to enable him to

seek legal aid. The judge summoned the applicant's solicitors to

court to clarify the position and they informed him that they had not

requested payment of their fees and were not abandoning the case but

that the applicant had informed them that he did not intend to pay

their fees and was dispensing with their services.

The applicant's request for an adjournment was refused by the

judge on the basis that it would take too much time to process a legal

aid application and that the application had an emergency nature in

that it concerned allegations of cruelty and physical assault and the

welfare of children was involved. The judge noted that the applicant

had not yet applied for legal aid, did not know whether he qualified

for legal aid or not and was unable to say what length of adjournment

he required. The judge did state that an adjournment would be granted

if, in the interim, the applicant would vacate the family home and

give custody of the children to his wife. The applicant considered

that these conditions were prejudicial to him and offered to maintain

his wife outside the home if she did not wish to remain there. However

this proposal was not accepted. The applicant was granted leave of half

a day to ask his former legal advisers if they would represent him or to

seek new representation. He was also refused leave to appeal against

the judge's decision not to adjourn the proceedings.

The proceedings took place over a period of 7 days from 2 to

10 June 1988. The applicant conducted his case in person. His wife

was represented by solicitor and counsel. The applicant examined and

cross-examined witnesses himself and had submitted a written document

outlining his version of his family situation. The judge states from

his notes of the proceedings that he allowed the applicant a great

deal of leeway and allowed him full range in both questioning and

cross-examining, far greater range than he would have allowed counsel.

On 10 June 1988 the High Court reversed the decision of the Circuit

Court and granted his wife a divorce a mensa et thoro, ordered the

applicant to leave the family home, to pay maintenance of £100 per

week, to lodge his passport with the court and not to remove the

children from the jurisdiction of the court.

On 13 June 1988, the applicant applied for legal aid in

respect of the outstanding issues relating to custody and access to

the children. Legal aid was refused as he was not eligible, having

regard to his level of earnings.

In a further decision of 21 June 1988, the High Court granted

the applicant access to his children during specified periods at the

weekend. On this occasion the applicant informed the court that he

had now obtained the services of legal representatives who were not

able to appear because of prior commitments. The remainder of the

case concerning the custody and welfare of his children was then

adjourned until 20 July 1988 when he was again legally represented.

Following the High Court hearing the applicant applied for

special leave without pay for domestic reasons which was granted.

The applicant informed the court on 20 July 1988 that he was unable as

a result to continue to pay maintenance. Following submissions from the

applicant's counsel as to his financial position, the High Court

refused to vary the Order for maintenance. The applicant states that

as a result he had to return to work or face committal to prison for

contempt of orders of the High Court.

The case continued to be adjourned at intervals in the High

Court without any change being made in the original High Court Orders

until 24 April 1989 when it was referred back to the Circuit

Court for the determination of the issue of custody of his children.

The case was listed for hearing on 28 and 29 November 1989 before the

Circuit Court. However, his wife's legal representatives were granted

an adjournment on 28 November 1989 on the basis that they were not

ready for the hearing.

In the meantime, on 24 November 1989 an interim protective

custody order had been obtained in the Dublin District Court by the

Eastern Health Board to remove his son G. from the family home and

place him in an institution for disturbed adolescents.

On 31 October 1990, the case was due to come before the

Circuit Court. The applicant's lawyers applied on 30 October 1990 to

come off the record and the court refused the applicant's application

for an adjournment. The applicant applied for judicial review of this

refusal on the ground that the court erred in rejecting his evidence

that he was not medically fit to conduct his own case. This

application was refused and his appeal to the Supreme Court dismissed

on 19 December 1990.

On 31 October 1990, the Circuit Court made a small adjustment

to the maintenance payment and continued the position as regarded

access and custody.

COMPLAINTS

The applicant complains under Article 6 paras. 1, 2, 3 (b) and

(c) of the Convention that he did not receive a fair hearing before

the High Court in complicated family law proceedings. He states that

he was compelled by the court to conduct his own case and did not have

either the necessary experience or sufficient time or facilities to do

so. In addition, he had to conduct his case against a professional and

experienced legal team.

He has submitted a medical opinion dated 16 June 1988 from a

doctor who was present at the hearing which concludes that it was

"medically unsuitable and dangerous to his health to have subjected

him to such a stressful situation, especially in view of the short

space between the High Court and the Circuit Court hearings".

He further complains under Article 3 of the Convention that it

was inhuman and degrading treatment to require him to participate in a

stressful hearing against experienced legal experts.

Finally, the applicant complains under Article 4 of the

Convention that he has been required by the High Court to return to

his former employment in order to support his family. He considers

that this amounts to forced labour contrary to this provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 December 1988 and

registered on 12 October 1989.

On 6 September 1990, the Commission decided to communicate the

applicatiOn to the Government pursuant to Rule 42 (2) (b) of the

Commission's Rules of Procedure (former version) and to invite them to

submit written observations on the admissibility and merits.

The Commission's observations were submitted on 30 December

1990 after an extension of the time-limit and the applicant's

observations were submitted on 2 May 1991 after an extension of the

time-limit.

The Commission decided to grant the applicant legal aid on

18 January 1991.

THE LAW

The applicant has complained that in the family law

proceedings before the High Court, he was refused an adjournment to

enable him to secure legal representation and that he was obliged to

represent himself in these proceedings. He considers that as a

consequence he did not have sufficient time and facilities to prepare

his case and did not have a fair hearing as required by Article 6

para. 1 (Art. 6-1) of the Convention. He also invokes Articles 6

paras. 2, 3 (b) and (c), 3 and 4 (Art. 6-2, 6-3-b, 6-3-c, 3, 4) of the

Convention.

Article 25 (Art. 25) of the Convention

The Government submit that the applicant cannot claim to be a

victim of a violation of the Convention since inter alia he was

himself seeking a divorce a mensa et thoro (judicial separation) and

cannot be said to be prejudiced by the result of the proceedings.

They submit on this point also that the judge offered the applicant an

adjournment on condition but that the applicant refused it. In these

circumstances, the Government argue that the applicant cannot complain

of unfairness of the proceedings.

The Commission notes however that while the applicant was

making a cross-application for divorce a mensa et thoro (judicial

separation), the court in fact granted the application by his wife for

judicial separation on the grounds of the applicant's cruelty, with

the result that he was regarded as the "guilty party", which the

applicant alleges can have consequences in matters of succession,

occupation of the family home, custody and access. Accordingly, the

Commission finds that the applicant can claim to have been prejudiced

by the court's decision. Similarly, while the Court did offer an

adjournment to the applicant, the Commission notes it was on condition

that the applicant leave his home and children in the interim. The

applicant states that he found this unreasonable in light of the fact

that his wife's application had already been refused at first

instance. The Commission finds that whether reasonable or

unreasonable, it was prejudicial to the applicant. It is however more

relevant to the general assessment of the fairness of the proceedings

than to the question of whether the applicant can claim to be a victim

of the Convention. The Commission concludes that the application

cannot be dismissed on this ground.

Abuse of petition

The Government also claim that the application constitutes an

abuse of petition in that the applicant, inter alia, has sought to

mislead the Commission and since his case is unmeritorious. The

Commission finds however no indication that in presenting his case

from his own point of view the applicant has deliberately misled the

Commission or misrepresented the facts. The Commission also finds no

indication that the contents of the application are of such a nature as

to render it abusive. It follows that the application cannot be

dismissed on this ground.

Article 26 (Art. 26) of the Convention

The Government have submitted that the applicant has failed to

introduce his complaint within six months as required by Article 26

(Art. 26) of the Convention. They submit that the decision which gave

rise to the applicant's complaints was the refusal of an adjournment

of the High Court on 1 June 1988 whereas the applicant introduced his

complaint on 5 December 1988, more than six months later.

The Commission recalls however that the applicant's main

complaint centres on the fairness of the proceedings before the High

Court. In the circumstances of this case, the Commission finds that

the six months period must be taken as starting from the end of those

proceedings, namely 10 June 1988, in which case the applicant has

introduced his application within the six months' time-limit as

required by Article 26 (Art. 26) of the Convention.

Article 6 (Art. 6) of the Convention

Article 6 para. 1 (Art. 6-1) of the Convention provides, in

its first sentence:

"In the determination of his civil rights and

obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing

within a reasonable time by an independent and

impartial tribunal established by law."

Article 6 paras. 2, 3 (b) and (c) (Art. 6-2, 6-3-b, 6-3-c) of

the Convention apply only to criminal proceedings and are therefore

not applicable to the family proceedings in issue in this case. The

Commission will however examine the complaints made by the applicant

in the context of the fairness of the proceedings under Article 6

para. 1 (Art. 6-1) of the Convention.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of

the Convention does not guarantee that both parties to any proceedings

must necessarily be represented by counsel. The case-law of the

Commission and the Court has however established that the effective

right of access to court guaranteed by Article 6 para. 1 of the

Convention may require that legal assistance be given to an applicant

who otherwise would not be able to present his case properly and

satisfactorily, having regard to its complexity or his emotional

involvement (see e.g. Eur. Court H.R., Airey judgment of 9 October

1979, Series A no. 32).

The Commission notes in this context that the applicant does

not complain that he should have been granted legal aid for which he

was not eligible on financial grounds, or that the refusal thereby

deprived him of access to court. He complains that he was refused an

adjournment to seek legal representation and was compelled to

represent himself, with the result that the proceedings were unfair.

It appears, however, from his correspondence that the

applicant was aware that his solicitor intended to come off the record

and required payment but that he took no steps to secure

representation elsewhere until after the hearing. The Commission

notes that the applicant requested an adjournment to seek

representation and to apply for legal aid and that an adjournment was

in fact offered on condition that the applicant left the matrimonial

home and gave custody of the children to his wife pending the hearing.

While the applicant rejected this offer, the Commission finds that it

was not an unreasonable exercise of the discretion of the judge

bearing in mind the subject-matter of the hearing (allegations

of cruelty), and that the applicant had appeared to require an indefinite

adjournment and yet had taken no steps to apply for the legal aid,

which was the alleged purpose of the adjournment. In addition, the

Court in any event granted a short adjournment until the next day for

the applcant to seek representation. The Commission also notes that

the applicant is articulate and well-educated and that according to

the judge, he was given full scope in examining and cross-examining

witnesses. While the applicant complains of ill-health, it appears

that he made no complaint to the Court nor presented to the court any

doctor's certificate.

Having regard to the above circumstances, the Commission finds

no indication that the refusal of the judge to allow an unconditional

adjournment to the applicant thereby rendered the proceedings unfair

contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

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.

Articles 3 and 4 (Art. 3, 4) of the Convention

The applicant has also complained that he suffered inhuman and

degrading treatment contrary to Article 3 (Art. 3) of the Convention as a

result of being obliged to represent himself in stressful

circumstances and that he has been subjected to forced labour contrary

to Article 4 (Art. 4) of the Convention since he has been obliged to

return to work in order to support his family.

The Commission has examined the applicant's complaints as they

have been submitted by him. However, after considering the case as a

whole, the Commission finds that they do not disclose any appearance

of a violation of the rights and freedoms set out in the Convention.

It follows that these complaints are 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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