Goodman International and Goodman v. Ireland

 FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 19538/92

by GOODMAN INTERNATIONAL

and Lawrence GOODMAN

against Ireland

The European Commission of Human Rights sitting in private on

12 January 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 February 1992

by by GOODMAN INTERNATIONAL and Lawrence GOODMAN against Ireland and

registered on 24 February 1992 under file No. 19538/92;

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 facts of the present case, as submitted by the applicants

and which may be deduced from documents lodged with the application,

may be summarised as follows.

The first applicant, Goodman International, is an incorporated

company registered in Ireland. The second applicant, Lawrence Goodman,

is an Irish citizen born in 1937 and resident in Ireland. He is chief

executive of the first applicant. Both applicants are represented

before the Commission by Messrs. A & L Goodbody, Solicitors, practising

in Dublin, Ireland.

A. The particular circumstances of the case

The first applicant is the largest company operating in the beef

processing industry in Ireland. It holds 40 % of the market.

For some years prior to May 1991 allegations of large scale

illegal activities in the beef industry were made in Dail Eirean (the

Lower House of the Irish Parliament). Similar allegations were made

on a television programme entitled "World in action" transmitted by

Independent Television in Ireland on 13 May 1991. Several of the

allegations involved the activities of the applicants, certain

politicians, customs and tax authorities, banks and the Department of

Agriculture and Food.

Dail Eirean adopted a resolution on 24 May 1991 that it was

expedient that a Tribunal of Inquiry (hereafter referred to as "the

Tribunal") be established to enquire into these allegations, as they

were of urgent public interest given the important position of the beef

industry in the economic life of the country. Seanad Eirean (the Upper

House of the Irish Parliament) adopted a similar resolution on 29 May

1991.

Pursuant to these resolutions, the Minister for Agriculture and

Food by Order dated 31 May 1991 appointed the President of the High

Court, Mr. Justice Hamilton, to be the sole member of the Tribunal.

The Tribunal is required to report on its conclusions to the Dail and

the Seanad and, if it thinks fit, make recommendations.

The Tribunal held a preliminary hearing on 21 June 1991, at which

a "statement of allegations" was drawn up identifying the alleged

illegal activities, fraud and malpractice in the beef processing

industry which were to be investigated.

In September 1991 and on 9 October 1991 the applicants made

written submissions and oral submissions respectively to the Tribunal

objecting to the nature of the inquiry and the manner in which it was

to be conducted. These submissions were rejected by the Tribunal.

As to the procedure for obtaining evidence Mr. Justice Hamilton

remarked as follows :

"The rules of evidence which have been established over many

years by the courts are of extreme importance to ensure fair

play. And having regard to the nature and importance of the

allegations and the possible effect on the good name and

reputation of any person appearing before it, it is my intention

to apply, wherever possible, the rules of evidence which have

been established over many years, reserve the right in

exceptional circumstances, having heard objections to the

admissibility of such evidence in the ordinary way, and counsel

for any party affected in any way by any evidence sought to be

adduced before the Tribunal will have ample opportunity of

objecting to its admissibility and secure a ruling thereon.

(The applicants' counsel) has sought a ruling from this court or

this Tribunal also with regard to the onus of proof. Again, the

onus of proof will differ having regard to the nature of the

allegation, but I can assure (counsel) and any other party that

in these proceedings there will be no finding of an allegation

involving criminal activity unless I am satisfied beyond all

reasonable doubt."

The applicants sought and obtained leave to issue judicial review

proceedings where similar submissions were made in the High Court.

These were also rejected by Mr. Justice Costello on 21 October 1991 who

held as follows on the Tribunal's functions :

"The functions of the Tribunal are to inquire, report and if

appropriate, to make recommendations. When reporting on

allegations of wrongdoing it expresses an opinion as to whether

the allegations are true or false, but this opinion is of no

legal effect. The Tribunal determines no legal rights ; it

imposes no legal obligations. It expresses conclusions for the

guidance of the legislature and the executive ...

The terms of reference in this case require the Tribunal to

inquire into the truth or falsity of a number of allegations of

wrongdoing including assertions that the criminal law has been

breached. But in inquiring into these allegations and in

reporting its opinion on them the Tribunal is not imposing any

liabilities or affecting any rights. It is not deciding any

controversy as to the existence of any legal right. It is not

making any determination of any rights or liabilities. It is not

imposing any penalties. It may come to the conclusion that some

or all the allegations of wrongdoing are true, but this opinion

is devoid of legal consequences. Its functions of inquiring,

reporting and recommending cannot therefore be regarded as the

'administration of justice'. The Tribunal is not exercising a

'judicial function' in the case of allegations of criminal

behaviour. It is not trying anyone on a criminal charge. In my

judgment parliament did not direct the establishment of a

Tribunal that is to exercise judicial functions ...

The same considerations apply in respect of disputes which may

exist at the time of the Tribunal appointment and which may later

become the subject of civil litigation. The holding of an

inquiry does not in any way prohibit a party to a dispute

referring it to the court's adjudication or prejudice its

consideration by the court ...

The obligation to adopt fair procedures may require the Tribunal

to take appropriate measures to ensure that its proceedings do

not constitute in practice an interference with the fair trial

of an accused arising, for example, from the publicity attendant

on the Tribunal's hearings. In this case the obligation to adopt

fair procedures has been amply recognised throughout the

Tribunal's deliberations and in the course of its communications

with the parties. On 10 October 1991 the Tribunal stated that

'if at any time it appears to me that there is the slightest

danger of any interference with the administration of justice I

will desist from dealing with the matter'."

The applicants appealed to the Supreme Court which upheld the

decision of the High Court in its entirety on 5 November 1991.

The allegations made against the applicants, and in particular

the proceedings of the Tribunal, have received significant media

attention.

B. The relevant domestic law

The Tribunal in the present case was established by way of the

administrative order of the Minister for Agriculture and Food on 31 May

1991 The Government or any Minister can inquire into matters of

public interest as part of the exercise of their executive powers. The

proceedings of the Tribunal are regulated by the Tribunals of Inquiry

(Evidence) Act 1921 and the Tribunals of Inquiry (Evidence) (Amendment)

Act 1979. Sections 4, 5 and 6 (1) of the latter legislation provide

as follows :

"4. A tribunal may make such orders as it considers necessary

for the purposes of its functions, and it shall have, in relation

to their making, all such powers, rights and privileges as are

vested in the High Court or a judge of that Court in respect of

the making of orders.

5 A statement or admission made by a person before a tribunal

or when being examined in pursuance of a commission or request

issued under subsection (1) of section 1 of the Principal Act

shall not be admissible as evidence against that person in any

criminal proceedings ...

6 Where a tribunal, or, if the tribunal consists of more than

one member, the chairman of the tribunal is of opinion that,

having regard to the findings of the tribunal and all other

relevant matters, there are sufficient reasons rendering it

equitable to do so, ... the chairman ... may by order direct that

the whole or part of the costs of any person appearing before the

tribunal by counsel or solicitor, as taxed by a Taxing Master of

the High Court, shall be paid to the person by any other person

named in the order."

The Supreme Court interpreted the latter provision in the

following manner :

"Section 6. The liability to pay costs cannot depend upon the

findings of the Tribunal as to the subject matter of the Inquiry.

When the Inquiry is in respect of a single disaster, then

ordinarily, any party permitted to be represented at the Inquiry

should have their costs paid out of public funds. The whole or

part of those costs may be disallowed by the Tribunal because of

the conduct of or on behalf of that party at, during or in

connection with the Inquiry. The expression 'the findings of the

Tribunal' should be read as the findings as to the conduct of the

parties at the Tribunal. In all other cases the allowance of

costs at public expense lies within the discretion of the

Tribunal, or, where appropriate, its chairman."

COMPLAINTS

1 The applicants complain that they are charged with criminal

offences to be determined by the Tribunal in the absence of a fair

trial as guaranteed by Article 6 para. 1 of the Convention, and that

they have not been afforded the presumption of innocence guaranteed by

Article 6 para. 2.

2 The applicants further complain that the Tribunal and the

attendant publicity have damaged their civil right to a good name and

reputation without any redress being available to them under Irish law,

in breach of the guarantees of Article 6 para. 1.

3 The applicants complain of damage to the commercial value of

their business by the Tribunal in violation of Article 1 of Protocol

No. 1 to the Convention.

4 The applicants allege that they have been singled out for

discriminatory treatment by their subjection to an inquiry as opposed

to a criminal trial, and that this is a breach of Article 6 read in

conjunction with Article 14 of the Convention.

5 In respect of all of the above complaints the applicants further

claim a breach of Article 13 of the Convention as, allegedly, there is

no effective domestic remedy.

THE LAW

1 The applicants complain that the Tribunal established by the

Minister for Agriculture and Food to inquire into the Irish beef

industry is, in effect, in the process of determining criminal charges

against them without affording them the guarantees of Article 6

paras. 1 and 2 (Art. 6-1, 6-2) of the Convention. They submit, inter

alia, that the criminal nature of the proceedings is reflected in the

power of the Tribunal under section 6 of the Tribunal and Inquiry

(Evidence) (Amendment) Act 1979 to inflict punishment upon them by way

of a costs order, and in the Tribunal's indication that it will base

its conclusions on the criminal standard of proof, namely, "beyond all

reasonable doubt".

Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention read

as follows :

"1. 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. Judgment

shall be pronounced publicly but the press and public may be

excluded from all or part of the trial in the interest of morals,

public order or national security in a democratic society, where

the interests of juveniles or the protection of the private life

of the parties so require, or to the extent strictly necessary

in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice.

2 Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission must first consider whether Article 6 paras. 1 and

2 (Art. 6-1, 6-2) are applicable to the proceedings before the Tribunal

of Inquiry, i.e. it must ascertain whether there is any "criminal

charge" against the applicants to be determined by the Tribunal.

In deciding whether a "criminal charge" within the meaning of the

Convention is at issue in a particular case, the case-law of the

Convention organs requires, first, reference to the domestic law

involved with a view to ascertaining whether the legal system of the

respondent State classifies the "offence" as "criminal". The nature

of the "offence" and the degree of severity of the penalty that the

person concerned risks incurring must then be considered (cf. Eur.

Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22,

pp. 34-35, para. 82 ; Öztürk judgment of 21 February 1984, Series A

no. 73, p. 18, para. 50 ; Campbell and Fell judgment of 28 June 1984,

Series A no. 80, pp. 35-38, paras. 70-73 ; Weber judgment of 22 May

1990, Series A no. 177, pp. 17-18, paras. 31-34 ; and Demicoli judgment

of 27 August 1991, Series A no. 210, pp. 15-16, para. 31).

The applicants in the present case have been and are being

required to provide evidence and to be heard as witnesses in

proceedings initiated by the Irish Parliament to inquire into alleged

illegal practices in the beef processing industry. In domestic law no

offence and no formal penalty are involved.

The Commission recalls that it is possible for a person to be

"charged" within the meaning of Article 6 (Art. 6) of the Convention

even where domestic law sees no charge (cf. Eur. Court H.R., Deweer

judgment of 27 February 1980, Series A no. 35, p. 23, para. 44). In

the present case, however, the role of the Tribunal is to inquire, to

express an opinion and, if appropriate, to make recommendations for the

guidance of the legislature and the executive on improvements in the

lawful running of the beef industry. These are matters of wide general

public concern which, although closely involving the applicants'

activities and the truth or falsity of certain criminal allegations,

cannot be said to amount to a disguised form of criminal proceedings.

The Commission finds that there is no evidence that the

Tribunal's discretionary powers to order costs would be used as a

sanction approaching that of a criminal penalty (cf. p. 6 above).

Moreover the Tribunal has not stated that the burden of proof

throughout the proceedings will be that of a criminal trial, that of

"beyond all reasonable doubt". The Tribunal said that the onus of

proof to be applied would differ according to the nature of the

allegations under investigation. Moreover it has been at pains to

emphasise that it is not intending to interfere with the administration

of justice. If there would be the slightest danger of doing so the

Tribunal will desist from dealing with the matter (cf. p. 5 above).

The Commission finds therefore that the subject matter before and

proceedings of the Tribunal of Inquiry do not involve the determination

of a "criminal charge" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. Moreover the applicants cannot be said

to be "charged with a criminal offence" within the meaning of Article

6 para. 2 (Art. 6-2) of the Convention. It follows that this part of

the application is incompatible ratione materiae with the provisions

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

of the Convention.

2 The applicants next complain that the Tribunal, with its

attendant publicity, has irreparably damaged their good reputation,

with the result that they had no effective remedies before the civil

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

However, the Commission notes that the Tribunal has not yet

issued its report on the inquiry. It is therefore not possible to say

what conclusions might be reached involving the applicants' business

activities and whether those conclusions would have any damaging effect

on the applicants'reputation. If the applicants are essentially

complaining about the very fact that a public inquiry touching on their

business concerns is being held at all, the Commission is of the view

that no protection under Article 6 (Art. 6) of the Convention can be

derived in a democratic society to prevent the conduct of inquiries

into matters of major public importance as in the present case. The

Commission concludes therefore that at the present stage of the inquiry

in question there is no evidence to support the applicants' contention

that the actions of the Tribunal have in any way interfered with or

determined the applicants' "civil rights" within the meaning of 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.

3 The applicants allege that damage has been caused to the

commercial value of their business by the Tribunal, the full extent of

which is impossible to quantify at this stage, but which is sufficient

to establish that they are victims of a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention.

Article 1 of Protocol No. 1 (P1-1) reads as follows :

"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."

However the Commission finds no evidence in the case-file to

substantiate the applicants' claim. No evidence of any significant

economic prejudice due directly to the Tribunal proceedings has been

submitted. In the circumstances, therefore, the Commission finds that

no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) has

been disclosed in the present case. It follows that this aspect of the

case is also manifestly ill-founded, within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

4 The applicants also complain that they are victims of

discrimination, having been singled out for the inquiry rather than

being prosecuted and tried before the criminal courts. They invoke

Article 14 of the Convention read in conjunction with Article 6

(Art. 14+6), the former reading as follows :

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

However, on the evidence before it, the Commission does not

consider that the applicants can be said to have been so victimised.

The Tribunal certainly took evidence at length as to the applicants'

activities. This was inevitable as the inquiry concerns the beef

processing industry of which the applicants make up 40 %, but it cannot

be classed as victimisation. Moreover the Commission has already held

above that the Tribunal's proceedings involve neither a disguised

determination of a criminal charge nor a determination of the

applicants' civil rights or obligations. Accordingly the Commission

finds no appearance of a violation of Article 14 of the Convention read

in conjunction with Article 6 (Art. 14+6).

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.

5 Finally the applicants allege that they have no effective remedy

at their disposal for their Convention claims, in breach of Article 13

(Art. 13) of the Convention which provides as follows :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

However the Commission recalls that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of every alleged

violation of the Convention. It only applies if the individual can be

said to have an "arguable claim" of a violation of the Convention (Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No. 131,

p. 23, para. 52).

In light of its conclusions above, the Commission finds that the

applicants cannot be said to have an "arguable claim" of a violation

of their Convention rights.

It follows that this complaint must also be rejected as being

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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)