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1. The author of the
communication, dated 8 July 2002, is Joseph Kavanagh, an Irish national,
born on 27 November 1957, who is currently imprisoned in Mountjoy Prison,
Dublin. He claims to be a victim of violations by the Republic of Ireland of
article 2, paragraphs 3 (a) and (b), and 26 of the Covenant. He is
represented by counsel.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 On 4 April 2001, the Human Rights Committee adopted its Views on
Communication 819/1998, holding that the author's right to equality before
the law, guaranteed in article 26 of the Covenant, had been violated, in
that the Director for Public Prosecutions (DPP) had directed the author to
be tried before a Special Criminal Court without providing grounds
justifying the selection of that particular trial procedure in his case.
[FN1] The Committee stated in its Views that the author was entitled to an
"effective remedy". [FN2] The State party was "also under an obligation to
ensure that similar violations do not occur in the future; it should ensure
that persons are not tried before the Special Criminal Court unless
reasonable and objective criteria for the decision are provided". [FN3]
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[FN1] Following that direction, he was convicted and sentenced to two terms
of 12 years and one term of 5 years' imprisonment, all running from July
1994. His appeal against conviction and sentence was dismissed.
[FN2] Communication 819/1998, para. 12.
[FN3] Ibid.
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2.2 On 28 April 2001, the day after receipt of the Committee's Views,
counsel wrote to the Minister for Justice, Equality and Law Reform seeking
his release, indicating that in the alternative legal action to vindicate
his rights would be pursued. On 30 April 2001, the letter was formally
acknowledged. [FN4] As under Irish practice applications challenging an
individual's detention are brought as soon as possible, on 3 May 2001, the
author applied ex parte to the High Court. The application sought his
release, the quashing of his conviction, a declaration that s.47 (2) of the
Offences Against the State Act 1939 was incompatible with the Covenant and
repugnant to the Constitution, the author's release on bail pending the
outcome of the proceedings, damages, other relief and costs. The application
was grounded on the Committee's Views and a claim that the Government was
obliged by the Constitution and the doctrine of legitimate expectation to
act on the Committee's Views.
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[FN4] No substantive reply was ever received to this letter.
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2.3 On 20 and 21 June 2001, the application for leave to seek judicial
review was heard in the High Court, with the State opposing the grant of
leave. It was argued for the author that, even though the Covenant had not
been expressly incorporated into Irish law and thus had not become directly
binding at domestic level, the Covenant and/or its principles had become
part of customary international law and in that manner binding. It was also
argued that by ratifying the Covenant and the Optional Protocol the State
party had given rise to a legitimate expectation that it would abide by and
implement the Views of the Committee in cases brought before it. The State
also sought costs against the author, while the author sought costs for
raising (for the first time) a point of considerable public importance.
2.4 On 29 June 2001, the High Court refused leave, holding that the author
had not established an arguable case. In the absence of direct incorporation
of the Covenant, the Covenant could only be relevant in the domestic legal
order through article 29 (3) of the Irish Constitution. [FN5] However, the
Court considered that even accepting arguendo that the Covenant or its
principles had become "generally recognized principles of international law"
cognizable in the courts, the only rights conferred were concerning
relations between States and not upon individuals such as the author. It
made no order as to costs, leaving the author to bear his own costs.
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[FN5] Article 29 (3) provides: "Ireland accepts the generally recognized
principles of international law as its rule of conduct in its relations with
other States."
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2.5 Once the High Court's Order was made available, on 16 July 2001, the
author appealed to the Supreme Court. The appeal was not heard until 13
December 2001 despite requests for expedition as the author was in custody.
The State again opposed the author's appeal. The State also sought costs
against the author, while the author again sought his costs for raising an
issue of public importance. On 1 March 2002, a five-judge bench of the
Supreme Court, including the Chief Justice, rejected the author's appeal
against the High Court's denial of leave to appeal, holding that the author
had not established an arguable case. It found that neither the Covenant nor
the Committee's Views could be given domestic effect in Irish law. It stated
that the Committee's Views could not prevail over the Offences Against the
State Act, or over a conviction by a court established under its provisions.
The Court made no order as to costs, leaving the author to bear his costs.
2.6 On 8 August 2001 (3 months and 10 days after receipt of the Committee's
Views), the Minister for Justice, Equality and Law Reform offered the author
£1,000 in acknowledgment of the Committee's Views, without specifying
whether it was compensation, a contribution to legal costs, or for some
other purpose. It did not indicate the steps being taken to avoid future
violations.
2.7 Shortly thereafter, the author received from the Committee's secretariat
a copy of the State party's follow-up reply to the Committee's Views in the
original communication. The reply informed the Committee of the proposed
payment to the author, and enclosed a partial copy of an interim report of a
Committee set up separately by the Government to review the Offences Against
the State Acts, 1939 to 1998.
2.8 On 22 August 2001, the author returned the cheque to the Minister as
totally inadequate and not in any way constituting an effective remedy. He
stated that the most appropriate remedy would have been to quash the
conviction and order a retrial before the ordinary courts, but as he had
already served the bulk of his sentence, he should be released. By letter of
24 August 2001, the Minister acknowledged receipt of the author's letter
rejecting the proffered remedy. No further communication from the Minister
has transpired. The issue of the cheque did not arise in the court
proceedings.
2.9 By letter of 5 October 2001 (expanding on a letter of 22 August 2001),
the author responded to the State party's follow-up reply, detailing why he
regarded the proposed remedy as inadequate and ineffective. The author
argued that a violation of Covenant rights should be treated analogously to
violations of the fundamental rights in the Constitution. The Irish courts
had in the past been vigilant to prevent breaches of these rights resulting
in convictions, and have accordingly overturned convictions and ordered
payment of substantial sums of compensation. The author also provided to the
Committee a dissenting opinion (not provided to the Committee by the State
party) by the Chair and two members of the committee established to review
the relevant legislation, which had found that there was no possible
amendment to the Acts which would remedy the violation of the Covenant
identified by the Committee in the use of the Acts. In any case, the author
states that no decision has been announced on the DPP's powers and he
continues to direct trial before the Special Criminal Court without
supplying grounds.
2.10 The author observes that in the course of the legal proceedings, the
State made no movement towards providing him with any remedy. He states that
with the Supreme Court's rejection of his appeal, all domestic remedies have
been exhausted.
THE COMPLAINT
3.1 The author claims a violation of article 2, paragraph 3 (a), in that the
State party has not provided him with an effective remedy for the breach of
article 26 already found by the Committee, the effects of which are
continuing. He relies on a series of cases where the Committee found
violations of article 2, paragraph 3, alongside a substantive violation of
the Covenant, because the legal system concerned did not provide an
effective remedy for the substantive violation. [FN6] He also distinguishes
his case from statements by the Committee that article 2 cannot be invoked
independently of a substantive violation by pointing out a substantive
violation has already occurred and been found by the Committee.
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[FN6] A. v. Australia (Communicaton No. 560/1993, Views adopted on 4 March
1997), Kelly v. Jamaica (Communication No. 537/1993, Views adopted on 17
July 1996), Ex-Philibert v. Zaire (Communication No. 90/1981, Views adopted
on 21 July 1983), Massiotti v. Uruguay (Communication No. 25/1978, Views
adopted on 26 July 1982).
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3.2 The author also claims a violation of article 2, paragraph 3 (b), by not
ensuring that he could have his right to a remedy determined by the
competent authorities, and by not developing the possibilities of judicial
remedy for cases such as his. There is no machinery in Irish law to which a
person in the author's situation can turn. There was no procedure for making
representations/submissions to the Minister as to what might constitute an
effective remedy, or for challenging or obtaining an independent review of
the Minister's decision. The proposed remedy of £1,000 falls far short of
even paying the author's costs in connection with his communication and the
subsequent judicial review proceedings. The author submits that the
possibility to apply to the Minister for a discretionary ex gratia remedy
does not satisfy the requirements of article 2, paragraph 3 (b), if
"competent authority" means, inter alia, an authority acting in accordance
with and subject to clearly established, fair and impartial procedures.
3.3 He also argues that, far from developing judicial remedies, the State
party's courts have held that the author's arguments seeking a remedy for an
established violation of the Covenant did not even raise an arguable issue
under Irish law. The author notes that the State party has not changed the
law so that the courts could give effect to the Committee's Views and
provide an effective remedy. On the contrary, the Government opposed the
author's applications to the courts at all levels, and actually sought costs
against him for doing so. The Supreme Court's determination that the
Covenant cannot prevail over convictions pursuant to the Offences Against
the State Act means there is no effective remedy for the violation and its
continuing effects.
3.4 He also claims that the State party has again violated, or continues to
violate, article 26, both alone and in conjunction with article 2. This is
as he is still suffering continuing effects, that is to say imprisonment
further to a conviction in force, of the unreasoned and unjustified decision
to try him before the Special Criminal Court. His conviction remains in
effect and he has been afforded no remedy. He relies on Pauger v. Austria
(No. 2), [FN7] where the Committee found a repeat violation of article 26
arising out of essentially the same facts as it had already found to
constitute discrimination in the first case.
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[FN7] Communication No. 716/1996, Views adopted on 25 March 1999.
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ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
4.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
4.2 As to the author's claims that he is a victim of a violation of articles
2 and 26 as a result of the failure of the State party to provide him with
an effective remedy, the Committee notes that this claim is not based on any
new factual developments related to the author's rights under the Covenant,
beyond his so far unsuccessful attempt to obtain a remedy that he would
consider effective in respect of a violation of the Covenant already
established by the Committee. In the circumstances, the Committee considers
that the author has no claim under the Covenant that would go beyond what
the Committee has already decided in the author's initial communication to
it. This part of the communication is therefore inadmissible under articles
1 and 2 of the Optional Protocol.
4.3 As to the author's arguments that the State party continues to send
individuals for trial before the Special Criminal Court, in breach of
article 26, without providing appropriate justification for such an action,
the Committee observes that this claim is in the nature of an actio
popularis, relating as it does to further actions taken by the State party
in respect of third parties rather than the author himself. It follows that
the author is not personally a victim of these new alleged violations of the
Covenant complained of, and this portion of the claim is inadmissible under
article 1 of the Optional Protocol.
5. The Committee therefore decides:
(a) That the communication is inadmissible under articles 1 and 2 of the
Optional Protocol;
(b) That this decision shall be communicated to the author, and, for
information, to the State party.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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