Devenney v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 24265/94

by Liam DEVENNEY

against the United Kingdom

The European Commission of Human Rights sitting in private on

24 February 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

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 12 April 1994 by

Mr. Liam Devenney against the United Kingdom and registered on

3 June 1994 under file No. 24265/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 15 May 1995 to communicate the

application;

- the Commission's decision of 1 July 1995, in the light of the

Government's request of 26 June 1995, to adjourn further

consideration of the case pending the cases of Tinnelly and

McElduff (Nos. 20390/92 and 21322/93);

- the Commission's decision of 7 September 1996 to ask the

Government whether, in the light of the Commission's

admissibility decision of 20 May 1996 in the cases of Tinnelly

and McElduff, they wished to make observations on admissibility

and merits, and the Government's reply of 6 December 1996 that

they did not wish to make observations of admissibility;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen born in 1958. He is

represented before the Commission by Messrs. P.J. McGrory & Co,

solicitors, of Belfast. The facts of the case, as submitted by the

applicant's representatives, may be summarised as follows.

The particular circumstances of the case

On 18 August 1992 the applicant began work in the Culloden Hotel,

Belfast, as a silver service waiter. The hotel is owned by a private

company. Initially the applicant had been doing very well and was

optimistic about promotion. On Saturday 31 October 1992 the restaurant

manager informed the applicant that he was being dismissed forthwith.

The applicant was given no reason whatsoever for his peremptory

dismissal. Various attempts to get an explanation for the dismissal

were unsuccessful. Ultimately the general manager told the applicant

on 1 November 1992 that he was dismissed because he did not meet the

grade and there was no other reason. Of all the full-time and

permanent staff in the restaurant the applicant thinks that he was the

only Catholic.

The applicant made a complaint to the Fair Employment Tribunal

that he had been unlawfully discriminated against on the grounds of

religious belief or political opinion. The applicant and thirteen of

his fifteen siblings are not involved in any politically related

activity.

On 29 March 1993 the solicitors acting on behalf of the

applicant's employers wrote to the Fair Employment Tribunal:

"We return herewith Notice of Appearance in relation to the

application presented by Mr Liam Devenney. On our

instructions, the acts of which complaint is made, were

done for the purpose of protecting public safety, and in

the circumstances by virtue of Section 42 of the Fair

Employment Act 1976, the Fair Employment (Northern Ireland)

Acts do not apply so that the tribunal does not have

jurisdiction to entertain the complaint."

The Fair Employment Tribunal then of its own motion fixed a

preliminary hearing for determination of the following issue:

"Whether the tribunal has jurisdiction to consider the

applicant's complaint in view of the provisions of Section

42 of the Fair Employment (Northern Ireland) Act 1976."

On 3 December 1993 the Fair Employment Commission, acting on

behalf of the applicant, wrote to the solicitors acting on behalf of

the applicant's employers requesting to know, inter alia, whether the

Secretary of State or any other Agency had been approached with a view

to obtaining a Section 42 (2) certificate. By reply of 6 December 1993

the employers' solicitors stated:

"We today received your letter dated 3 December 1993 in

relation to the above. You will be pleased to hear that

during the writer's holiday last week a Section 42

certificate was received from the Crown Solicitor's office

(a certified copy of which is enclosed herewith) so that it

now seems unnecessary to take any further action, and that

you may close your file in this matter."

The applicant states that he does not know the basis upon which

the certificate was issued. He has never been shown, and is not

entitled to demand, sight of the information, if any, which was placed

before the Secretary of State which led to the certificate being

issued. The applicant does not know whether this information is

correct or incorrect, whether it is complete or incomplete, and whether

it is reliable or not. Nor does he know whether the information

provided could reasonably support the view expressed in the

certificate.

On 5 January 1995 the Fair Employment Tribunal, determining a

preliminary question, found that the Fair Employment Act did not apply

to the termination of the applicant's contract, nor to the decision

summarily to terminate the contract, but that it did apply to the

extent that the respondent gave a false reason for the termination, and

insofar as that reason could constitute unlawful discrimination within

the meaning of the Act.

Relevant domestic law

By virtue of Section 17 of the Fair Employment (Northern Ireland)

Act 1976 ("the 1976 Act") it is unlawful for an employer to

discriminate against a person on grounds of religious belief or

political opinion in relation to employment in Northern Ireland, inter

alia, by dismissing him or subjecting him to any other detriment. By

virtue of Section 24 of the 1976 Act as amended a complaint of unlawful

discrimination may be presented to the Fair Employment Tribunal which

is established by Statute to investigate complaints of unlawful

discrimination on grounds of religious belief or political opinion.

Section 42 of the 1976 Act provides as follows:

"(1) The Fair Employment (Northern Ireland) Acts shall not

apply to an act done for the purpose of safeguarding

national security or protecting public safety or public

order.

(2) A certificate signed by, or on behalf of the Secretary

of State and certifying that an act specified in the

certificate was done for the purpose mentioned in sub-

section (1) shall be conclusive evidence that it was done

for that purpose.

(3) A document purporting to be a document such as is

mentioned in sub-section (2) shall be received in evidence

and, unless the contrary is proved, shall be deemed to be

such a certificate."

COMPLAINTS

The applicant alleges a violation of Articles 6, 13 and 14 of the

Convention.

Under Article 6 he complains that the issue of the Section 42

certificate deprived him of the tribunal to which he was entitled. He

points out that he does not know, and under domestic law is not

entitled to know, what information caused the Secretary of State to

issue the Section 42 certificate, or whether that information is

accurate or not. He also points out that it is impossible to tell

whether the information before the Secretary of State reasonably leads

to the conclusions reached.

He also submits that he has no effective remedy in respect of the

alleged violation, and that he has been discriminated against in the

enjoyment of his Convention rights.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 April 1994 and registered

on 3 June 1994.

On 15 May 1995 the Commission decided to communicate the

application.

On 1 July 1995, pursuant to a proposal from the respondent

Government, the Commission adjourned the application pending the

proceedings in Applications Nos. 20390/92 and 21322/93.

On 7 September 1996, in the light of the Commission's decision

of 20 May 1996 to declare admissible Applications Nos. 20390/92 and

21322/93, the Commission decided to ask the Government whether they

wished to make observations on admissibility. The Government informed

the Commission on 6 December 1996 that they did not wish to make any

such observations.

THE LAW

The applicant claims that the issue of a Section 42 certificate

in the present case deprived him of access to court in a way which

violated Article 6, 13 and 14 (Art. 6, 13, 14) of the Convention.

The Government have stated that they do not wish to present

observations on the admissibility of the case.

The Commission has had regard to the case as it stands, and to

the statement by the respondent Government that they do not wish to

make observations on its admissibility. The Commission finds that the

case raises serious and complex issues of fact and law under the

Convention, the determination of which should depend on an examination

of the merits of the application as a whole. The application is

therefore not manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. The application must therefore

be declared admissible, no ground for declaring it inadmissible having

been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission