DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

It is not disputed in this case t hat the applicant, Mrs. Johanna Airey , cannot afford to pay the full costs of legal representation in order to apply to the High Court of Ireland for judicial separation. She alleged that Articles 6, 8, 13 and 14 (art. 6, art. 8, art. 13, art. 14) of the Convention had been violated. The legal submissions related to the facts of the case have been complicated by the argument, reiterated before the Court by the respondent Government, that the case should have been declared inadmissible by the Commission.

It seems to me permissible to begin th e examination of the merits of the case by asking whether the respondent Government are obliged under the Convention to grant the applicant legal aid and thereby make it financially possible for her to apply to the High Court for judicial separation.

It is not in dispute that the applica nt has access to the High Court in the formal sense. There is no legal rule and no decision by a Minister or official to the effect that she may not avail herself of the remedies that the High Court can grant.

Thus, the difficulties which, according to the applicant, bar her from the remedy formally open to her under Irish law are factual in their nature. These difficulties do not, or at least only to a very small degree, concern payments which she would have to make to the Irish Treasury. The payments would mainly be to such lawyers as would represent her before the High Court.

Bearing this in mind I have, without much hesitation but admittedly with regret, come to the conclusion that the applicant does not have a case under Article 6 para . 1 (art. 6-1) of the Convention. I find in this provision no obligation for the Contracting States to grant free legal aid in civil cases, which is what is really at issue here. An individual ’ s ability or inability to claim his or her rights under the Convention may stem from several reasons, one of them being his or her financial position. It is, of course, deplorable that this should be so. To correct this situation, the States which have ratified the Convention have taken and are taking countless measures, thus promoting economic and social development in our part of the globe. The ideas underlying the Convention, as well as its wording, make it clear that it is concerned with problems other than the one facing us in this case. The war on poverty cannot be won through broad interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms. Where the Convention sees financial ability to avail oneself of a right guaranteed therein as so important that it must be considered an integral part of the right, this is so stated. This is borne out by Article 6 para . 3 (art. 6-3). When this is not the case, the Convention has nothing to say on how, when and if the financial means should be made available. Any other interpretation of the Convention, at least at this particular stage of the development of human rights, would open up problems whose range and complexity cannot be foreseen but which would doubtless prove to be beyond the power of the Convention and the institutions set up by it.

As regards the alleged violati on of Article 8 (art. 8) of the Convention, it is clear that the same facts are involved as in the claim under Article 6 para . 1 (art. 6-1). In my opinion, it is a far-fetched interpretation of Article 8 (art. 8) to come to the conclusion that the duty to respect Mrs. Airey ’ s private and family life includes the duty to help her to seek judicial separation in the High Court. I find it sufficient in t his connection to refer to what is stated above on the lack of obligation under the Convention to give financial support. For me, this has the same weight in respect of Article 8 (art. 8) as it has in respect of Article 6 para . 1 (art. 6-1).

Although I am of the opinion that there is no breach in this case of either Article 6 para . 1 (art. 6-1) or Article 8 (art. 8), it cannot be denied that the facts of the case come within the scope of these provisions. There is, therefore, a possibility in law of finding a violation of one or both of the above-mentioned Articles taken in conjunction with Article 14 (art. 14+6-1, art. 14+8). Article 14 (art. 14) states, inter alia, that the enjoyment of the rights set forth in the Convention shall be secured without discrimination on the ground of property. There are no legal obstacles preventing the applicant from having access to the High Court. The alleged difficulties are of a factual nature. In addition, they concern her dealings with the legal profession rather than with the Irish Government. Because of this and the underlying arguments enunciated above, I find no violation of Article 14 (art. 14) in this case.

The applicant has invoked Article 13 (art. 13) of the Convention, alleging that she did not have "an eff ective remedy before a national authority" when seeking the protection granted under Articles 6 para . 1, 8 and 14 (art. 6-1, art. 8, art. 14). Neither the Government nor the Commission expanded in their memorials or at the oral hearings on the arguments concerning Article 13 (art. 13). It seems from the Commission ’ s report that the applicant alleges that a violation was constituted by the lack of an alternative remedy to compensate for the absence of a system of legal aid. This argument presupposes a violation of Articles 6 para . 1, 8 and/or 14 (art. 6-1, art. 8, art. 14) and is therefore not valid when seen from my point of view. Another and probably more substantial argument would have been that because the applicant alleged a violation of her rights under the Convention she was entitled to an effective remedy in order to test the point whether or not she had the right to legal aid. Such an argument would have been in line with the Court ’ s judgment in the case of Klass and others [1] . However, this argument has not been pursued before the Court and there is no evidence that the applicant could not have used the ordinary means available to all citizens to approach her Government or courts on this matter without prohibitive costs. For these reasons, I find no violation of Article 13 (art. 13) in this case.

DISSENTING OPINION OF JUDGE EVRIGENIS

(Translation)

I was, to my great regret, unable to agree with the majority of the Court on three points. The following considerations prompted my dissent:

1. The applicant alleges a violation of Article 14 of the Convention, taken in conjunction with Article 6 para . 1 (art. 14+6-1). She complains, notably, that she is the victim of treatment involving discrimination on the ground of property: in view of her financial situation, the high costs of judicial separation proceedings in fact block her access to the courts.

This claim should have been examined by the Court. On the one hand, following the same approach as the judgment and taking its actual wording (paragraph 30), there can be no doubt that in making the claim in question the applicant was complaining of a "clear inequality" of treatment which is based on property and is a "fundamental aspect" of the case. On the other hand, the fact that the Court had found a violation of Article 6 para . 1 (art. 6-1) taken alone did not dispense it from examining the case under Article 14 (art. 14) as well. It does not appear to me that paragraph 30 of the judgment is correct when it draws, in relation to the taking into consideration of Article 14 (art. 14), a distinction that depends on whether or not there is a violation of a provision of the Convention enshrining a particular right. Discrimination in the enjoyment of a right protected by the Convention contravenes Article 14 (art. 14) irrespective of whether such discrimination lies within or outside the area of violation of that right. The word "enjoyment", within the meaning of Article 14 (art. 14), must cover all situations that may arise between, at the one extreme, plain refusal of a right protected by the Convention and, at the other, full embodiment of that right in the domestic system. It is for these reasons that I replied in the affirmative to the question whether it was necessary to rule on the possible violation of Article 14 taken in conjunction with Article 6 para . 1 (art. 14+6-1) (point 5 of the operative provisions of the judgment).

2. I voted for the absence of a violation of Article 8 (art. 8) (paragraphs 31-33 of the judgment and point 6 of the operative provisions). I was, in fact, unable to perceive a violation of a right protected directly or indirectly by this provision. In my view, the facts put before the Court disclose a violation which goes not to the substance of a right but to its procedural superstructure and is, therefore, covered and absorbed by Article 6 para . 1 (art. 6-1).

3. The Court should, in my opinion, ha ve undertaken an examination of the claim based on the violation of Article 13 (art. 13) (paragraphs 34-35 of the judgment and point 7 of the operative provisions). The judicial proceedings contemplated by Article 6 para . 1 (art. 6-1) concern civil rights, in the present case the right to a judicial separation. On the other hand, the remedy mentioned in Article 13 (art. 13) refers to the fundamental rights protected by the Convention, in the present case the right of access to the courts, as it results from Article 6 para . 1 (art. 6-1). Accordingly, there was not any overlapping or absorption as regards the two provisions.

[1] Note by the Registry: 6 September 1978 , Series A no. 28, pp. 28-29, paras. 62-64.