Resolution DH (2000) 49

concerning the judgment of the European Court of Human Rights of 10 july 1998 in the case of Tinnelly & sons Ltd and others and McElduff and others

against the United Kingdom

(Adopted by the Committee of Ministers

on 10 April 2000 at the 704th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Tinnelly & Sons Ltd and others and McElduff and others case delivered on 10 July 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in two applications (Nos. 20390/92 and 21322/93) against the United Kingdom, lodged with the European Commission of Human Rights on 27 May 1992 and 26 August 1992 respectively under Article 25 of the Co n vention by Mr John Tinnelly & Sons Ltd, a limited company based in Northern Ireland, and Messrs Patrick and Gerard Tinnelly and by Messrs Kevin, Michael, Paddy and Barry McElduff , all British nationals, and that the Commission declared admissible their complaints that the issuing of a certificate by the Minister rejecting the applicants’ tender for a demolition contract for national security reasons amounted to a breach of their right to access to an independent and impartial tribunal in that the conclusive certificate issued by the Minister prevented the courts from dealing with its merits and that this refusal constituted a violation of the right to a good reputation, as protected by Article 8 of the Convention, a violation of the right to an effective remedy and a discrimination on religious grounds;

Recalling that the case was brought before the Court by the Commission on 9 July 1997 and by the Government of the United Kingdom on 11 July 1997;

Whereas in its judgment of 10 July 1998 the Court, unanimously:

- held that Article 6, paragraph 1 of the Convention, was applicable in the instant case and had been violated;

- held that it was not necessary to consider the applicants’ complaints under Article 6, paragraph 1, of the Convention in conjunction with Article 14 of the Convention, and under Article 8 of the Convention either alone or in conjunction with Article 13 of the Convention;

- held that the Government of the respondent State was to pay, within three months, to Tinnelly, 15 000 pounds sterling and the McElduffs 10 000 pounds sterling by way of compensation for loss of opportunity, Mr Patrick Tinnelly and Mr Gerard Tinnelly, 1 200.14 pounds sterling in respect of expenses and that simple interest at an annual rate of 7.5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants’ claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of the judgment of 10 July 1998, having regard to the United Kingdom’s obligation under Article 53 of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 9 October 1998, within the time-limit set, the Government of the respondent State paid the a p plicants the sums provided for in the judgment of 10 July 1998,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exe r cised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (2000) 49

Information provided by the Government of the United Kingdom during the examination of the case of Tinnelly & Sons Ltd and others and McElduff and others

by the Committee of Ministers

The Government of the United Kingdom informed the Committee of Ministers that on 29 July 1999, the Northern Ireland Act Tribunal (Procedure) Rules 1999  (“the Tribunal Rules”) came into force. The Tribunal Rules prescribe the practice and procedure to be followed on appeals to the Tribunal established under section 91 of the Northern Ireland Act 1998 (“Tribunal”).

Under the new Act, the absence of an appeal process in relation to the issuing of certificates which was criticised in the judgment of the European Court of Human Rights has been remedied. Under Rule 7 of the Tribunal Rules, an appellant may exercise his right of appeal to the Tribunal by giving notice of an appeal within 14 days of receiving notice that a certificate has been issued.

The certificates in question are those referred to in section 90 of the 1998 Act, Article 80 of the Fair Employment and Treatment (Northern Ireland) Order 1998(b), Article 53Za of the Sex Discrimination (Northern Ireland) Order 1976 (c) or Article 41A of the Race Relations (Northern Ireland) Order 1997(d).

According to Rule 3 (1), the Tribunal, when exercising its functions, shall secure that information is not disclosed contrary to the interest of national security, public safety or public order or in any other circumstances where disclosure is likely to harm a public interest.

Lastly, the Government of the United Kingdom informed the Committee of Ministers that the judgment of the European Court had been published in the European Human Rights Reports and had been referred to in the Bulletin of Northern Ireland Law. All Northern Ireland Office officials responsible for advising the Secretary of State for Northern Ireland on the issuing of certificates which were criticised in the judgment are now aware of the judgment of the European Court.

The Government considers that the measures adopted by the authorities of the United Kingdom prevent any risk of further violations similar to those found in this case and that, consequently, the United Kingdom has complied with its obligations under Article 53 of the Convention in this case.