DISSENTING OPINION OF JUDGE O ’ DONOGHUE

As I am unable to agree with the main trend of and the principal conclusions in the judgment of the Court, I think I should first state the general position and then deal shortly with the rulings of the Court under the separate Articles invoked under the Convention.

A. General observations

It is not contested that there is n o right under the Convention to obtain free legal aid in civil matters. Recognition of this may be deduced from a number of cases and the history of events which led to the adoption by the Committee of Ministers in March 1978 of Resolution (78) 8. This followed much discussion and sympathetic consideration of the desirability of making provision for aid and advice in this field. The Resolution recommended Governments of member States to "take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the principles set out in the appendix" to the Resolution. These principles embraced free legal aid and advice for necessitous persons. The reference to progressive implementation of these principles shows that it was recognised that the position was not the same in the several States Parties to the Convention. The Court has been made aware that the respondent Government will introduce legislation to provide legal aid in family-law matters before the end of 1979. Having regard to the tardiness of States generally to promote legislation of a socially reforming character, I do not think the undertaking in the present case shows any unreasonable delay in complying with the recommendations of the Committee of Ministers.

The applicant, being aware that no right to legal aid is to be found in the Convention, makes the claim that her right of access to the High Court has been impeded by the absence of such legal aid. The judgment of this Court in the Golder case is cited in support of this contention. One must point out, however, that there was a positive prohibition to prevent Golder obtaining access to a court. Here, however, there is no bar or impediment on Mrs. Airey ’ s seeking access to the High Court. Quite apart from the right and the freedom of any lay person to take and pursue civil proceedings in any Irish court without the aid or intervention of any member of the legal profession to assist him or her, there is no evidence whatever that Mrs. Airey made any effort or attempt formally or informally to approach or communicate with the High Court. At the same time, the papers lodged by Mrs. Airey show that she freely communicated with the Human Rights Commission and carried on a protracted correspondence with the Ecclesiastical Authorities on the nullity issue.

In the "Vagrancy" case the failure of the State to provide by law any tribunal competent to hear complaints under Article 5 para . 4 (art. 5-4) of the Convention was held to constitute a breach. In this case, there is no such omission. The century-old remedy to obtain judicial separation in the High Court is still available to Mrs. Airey . The antiquity of this remedy and the qualified relief afforded to a successful petitioner may have contributed to its being had recourse to in fewer and fewer cases. There is, how ever, another explanation. The description of this process as a petition for divorce a mensa et thoro leads to confusion when the relief available is merely a separation of the spouses and not a divorce as that term is usually understood, ie , divorce a vinculis . Separation is more conveniently achieved by agreement between the parties and if protection from threats or physical assault is desired, a barring order can be obtained in a local court. Judicial separation ordered on a petition for divorce a mensa et thoro does not affect the married status of the parties or terminate the marriage. At the same time I agree that it is for Mrs. Airey to select the legal process she wishes to pursue.

It may be appropriate to refer to the facts and to the cautionary observation at paragraph 14 of the report that the Commission did not make any finding concerning the facts of Timothy Airey ’ s behaviour and the allegations made by the applicant against him. There is enough material to show that a breakdown has occurred in the Airey marriage. It is understandable that Timothy Airey should be described by his wife ’ s counsel as a violent and drunken husband from whom his wife shrinks in constant terror. What are the facts? On one occasion only did Mrs. Airey proceed in court against her husband for assault and in January 1972 the Justice fined the defendant 25 pence and declined to order him to enter into a bond as to his future behaviour. The vindication of the Justice ’ s action ha s been seen in the fact that no complaint has been made by his wife against Timothy Airey as to any approach, threat or attempted entry to the matrimonial home by him since 1972. Moreover, until he beca me unemployed in December 1978, the husband paid the maintenance ordered by the court. There has been in fact a complete separation effected between husband and wife by the events. It strikes me as peculiar that no attempt has been made to obtain any statement from Timothy Airey beyond the assertion that he declined to attend his wife ’ s solicitor ’ s office to sign a deed of separation. It is regretted that the Court did not see fit to repeat the restraint shown by the Commission in their absence of comment on Mr. Airey ’ s behaviour.

Another reason why the judicial rem edy for separation is sought in such a small number of cases is, of course, that a decree would not dissolve the marriage. To say that divorce a vinculis was available to Irish people in the United Kingdom from 1857 until 1922 is somewhat naive because it involved process in the courts in Ireland in the first instance and the intervention of the legislative omnipotence of the House of Lords to break the link. In fact, that little more than 20 instances of this remedy took place between 1857 and 1922 shows that it is conveying a false impression to say it provided a means of legally dissolving a marriage for the ordinary Irish citizen.

There is no doubt about the p resent position under the Irish Constitution. It may be a little strange for some members of the Court to appreciate the rigidity of this position but it will be seen that for over a century the law in Ireland placed many obstacles in the way of obtaining a dissolution of marriage.

The Court has always been careful to abstain from recommending or suggesting the blue-print of any constitutional or legislative changes in the law of member States.

Many changes have taken place in r ecent times in the law enabling marriages to be dissolved in the several member States. I am not aware that it has ever been contended that divorce legislation is either required or prohibited by any Article of the Convention. There is a great variety in the laws enabling marriages to be dissolved and it is quite understandable that the rigid position at the moment in Ireland owing to the Constitutional prohibition is somewhat hard to be fully understood and appreciated by those from countries where divorce can be obtained with great facility and expedition.

B. Particular observations on the judgment

Paragraph 11

In the 255 cases, decrees were made in 30, which supports my view that this archaic procedure has a limited appeal to the great number of parties involved in matrimonial disputes, and is invoked chiefly where questions as to custody of children or settlement of matrimonial property arise. The Court has not been told if Timothy Airey would defend a petition or resist a move to obtain judicial separation, and we are left with his conduct since 1972 - observing the order for the payment of maintenance and in fact recognizing the state of separation. Reliance on statistical tables to furnish an absolute guide in all cases of marriage disputes between spouses is likely to be disappointing, and the delicacy and variety in the intimate relations between husband and wife will not in many cases respond to computerisation.

Paragraph 13

There is nothing to support the compla int that suggested treatment as an alcoholic was ever put forward in relation to Timothy Airey , and seeing that he was in employment until 1978 and made payments of maintenance over the years, any judgment of the Court should acknowledge these facts. I am not aware that in any country an effective or fruitful process has been devised to recover payments from a penniless defaulting husband.

Paragraph 18

The failure in the "Vagrancy" case as I understand it consisted in the Belgian State ’ s making no provision in its laws for the existence of an independent tribunal to hear and determine complaints under Article 5 para . 4 (art. 5-4) of the Convention. There is no such failure or omission here and the tribunal, viz. the High Court, is and has been in existence over the years. The case therefore has no relevance here.

Paragraph 19

It is admitted that under Irish l aw, as distinct from some other countries, any person without the assistance of a lawyer is entitled to seek the assistance of and institute proceedings in the High Court. It would have been of particular relevance and help to me in this case if a statement had been obtained from the High Court as to whether the particulars which Mrs. Airey furnished to the Commission would, or would not, have been accepted as the material content of a petition seeking judicial separation. In the absence of any evidence on this vital question, there must arise a doubt, and I am unable to find the requisite proof to establish a violation of Article 6 (art. 6).

Paragraph 20

The distinction between this case and the Golder judgment is plain to me. No prohibition or barrier has been imposed on Mrs. Airey . The absence of legal aid, the right to which in civil cases is not guaranteed by the Convention, cannot and should not, in my view, be so manipulated as to constitute an infringement without evidence that the High Court would not have entertained Mrs. Airey ’ s complaint.

Paragraph 24

I agree that rights guaranteed under t he Convention must be practical and effective. The issue in this case would be a simple one, viz was there evidence of cruelty? To hold on the case as presented that there was a breach of Article 6 (art. 6) would be to depart from the principle I have regarded as fundamental - that breaches of the Convention must be proved affirmatively and not presumed in the absence of any evidence that Mrs. Airey would not be heard on her own in the High Court. I have commented above, in connection with paragraph 11, on the few cases where petitions reached the stage of decrees. I would again refer to my general observations as to the uniqueness of marriage law in Ireland and the difficulty experienced by those not familiar with its history and features.

Paragraph 25

I must record my disagreement with the conclusion of the Court on this point. Of course, hindrance can contravene the Convention if there was evidence of such hindrance. Here I must reiterate that there is an absence of any such evidence, and we are left in the realm of conjecture and "plausible" inference.

Paragraph 26

The Court has had to recognize that access to the High Court under Article 6 (art. 6) does not in every case require to be satisfied by the assistance or intervention of a lawyer. Applications for Habeas Corpus are made frequently to any Judge of the High Court in the most informal manner and without legal aid, and extend to any form of custody which may be complained of, even if it arose out of civil litigation. Notwithstanding this recognition, however, the Court does not seem to see Mrs. Airey ’ s position as similar to that where she was complaining that she or one of her infant children were being detained unlawfully in custody.

Paragraph 27

The case does not disclose that a ny statement or explanation was proffered by or sought from any of the several solicitors consulted by Mrs. Airey . Again, there is an example in the judgment of inferences being made in the absence of affirmative proof. I am quite unable to find a breach of the Convention where the foundation is derived from "plausible inferences".

Paragraph 28

For the reasons outlined in this opi nion, I do not find a breach of Article 6 para . 1 (art. 6-1).

Paragraphs 29 and 30

I do not find any evidence of discrimination under Articles 6 and 14 (art. 6, art. 14).

Paragraphs 31-33

For the reasons already stated above, I cannot find that a breach of Article 8 (art. 8) has been established.

Paragraphs 34 and 35

It follows from my opinion above that no breach of Article 13 (art. 13) has been established.

Paragraphs 36 and 37

The question of satisfaction unde r Article 50 (art. 50) must, of course, be reserved.