AS TO THE ADMISSIBILITY OF
The European Court of Human Rights (Third Section), sitting on 15 December 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 22 April 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, X., is an Irish national who was born in 1986 and lives in Dublin. He was represented before the Court by Mr J Quinn, a lawyer practising in Dublin. The Irish Government (“the Government”) were represented by their co-Agent, Mr P. White of the Department of Foreign Affairs.
A. The circumstances of the case
2. In the early hours of the morning of 11 January 2003 the applicant, who had stolen a car and driven it through a red traffic light, was involved in a collision with another vehicle in Dublin. Prior to the collision the applicant had driven at considerable speed and had rammed three police cars which had been involved in an attempt to stop the applicant. Two people were killed in the collision. Mr G., the driver of the other vehicle, a taxi, was killed instantly and one of the passengers in the stolen car driven by the applicant died some hours later.
3. On the following day (12 January 2003) the applicant was arrested and detained under section 4 of the Criminal Justice Act, 1984. He was released from custody but arrested again in order to be charged with an offence under section 112 of the Road Traffic Act 1961, as amended. Y, the surviving passenger from the stolen car, was also so charged. On 13 January 2003 the applicant and Y (neither of whom had by then attained the age of majority) appeared before the Dublin District Court, sitting as the Children Court (“the Children Court”). Restrictions are imposed upon reports of proceedings before the Children Court pursuant to the provisions of the Children Act 2001.
4. Considerable publicity was generated by the incident. The Director of Public Prosecutions brought proceedings for contempt of court against certain newspapers that had identified (by initials) the applicant and Y and on 7 March 2003 the High Court convicted the said newspapers of contempt of court in respect of the articles published after the applicant and Y. had been charged.
5. Meanwhile, in view of the nature of the offences with which he had been charged, the applicant’s case had been transferred from the Children Court to the Dublin Circuit Criminal Court. On 15 July 2003 the applicant pleaded guilty to manslaughter. On 22 October 2003 he pleaded guilty to a further count of manslaughter and to a count of unlawful use of a mechanically propelled vehicle. On that day (22 October 2003) the applicant was sentenced to seven years’ detention. At that time, the applicant was 17 years and 5 months old.
6. Following the sentencing, the trial judge directed that the name of the applicant could not be published in the media on the grounds that the applicant was a child within the meaning of the Children Act 2001 (“the 2001 Act”) and that publication of his name was prohibited by the Act. However, later that day, legal representatives from a number of media organisations brought an application, on notice to the applicant’s lawyers, to lift the prohibition on publishing the applicant’s name on the basis that the 2001 Act did not confer jurisdiction on the Circuit Criminal Court (before which the applicant had been tried) to make the Order. Having heard submissions from the parties on the matter, the said judge vacated his earlier order. Counsel for the applicant, having failed in opposing the application, then asked for a transcript of the ruling to be made available stating “We have other remedies”.
7. That evening the applicant’s name was broadcast on the television and the radio. His picture also appeared on the television. The newspapers later published his name and his picture.
B. Relevant domestic law and practice
1. The Constitution
8. Article 34(1) of the Constitution of Ireland 1937 provides:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
Article 40(3) reads, in so far as relevant, as follows:
“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
9. The domestic courts recognise further unspecified personal rights protected by Article 40(3) of the Constitution either as rights ancillary or corollary to those expressly mentioned in Article 40(3)(2) or as latent in the expression “personal rights” in Article 40(3)(1). Thus, the courts have recognised, inter alia, a right to privacy as one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. In McGee v. the Attorney General  IR 284 the Supreme Court held that:
“Whilst the ‘personal rights’ [in Article 40.3 of the Constitution of Ireland] are not described specifically, it is scarcely to be doubted that the right to privacy is universally recognised and accepted with possibly the rarest of exceptions.”
In the case of Kennedy and Others v. Ireland and the Attorney General  ILRM 472, the plaintiffs were awarded £50,000 in damages when the Court found that an unjustifiable tapping of the plaintiffs’ telephones breached their right to privacy as protected under Article 40(3) of the Constitution.
In The State (Quinn) v Ryan  IR 70 the Supreme Court found that:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.”
2. The Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”)
10. Section 45(1) of the above Act, where relevant, provides as follows:
“Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters...”
Section 45(2) of the above Act expressly provides that the cases prescribed by section 45(1):
“. . .shall be in addition to any other cases prescribed by any Act of the Oireachtas.”
11. Pursuant to section 45(1) of the 1961 Act, the domestic courts have made Orders prohibiting the disclosure of the identities of parties, including minors, in a variety of cases including:- Kennedy and McCann  IR 382 (which involved a custody dispute between parents and subsequently contempt of court proceedings against a journalist and newspaper editor who breached the order); In Re R. Ltd.  IR 126 (proceedings involving a company and one of its directors); JPD v MG  1 IR 47 (a paternity dispute); Attorney General v. X  1 IR 1 (proceedings involving a young girl who sought an abortion); In Re The Child Abduction and Enforcement of Custody Orders Act, 1991; PSS v. JAS (otherwise C) Unreported, High Court, 22 May 1995, (contempt of court proceedings were issued against a newspaper editor and journalist for breaching a section 45 order); and In Re A Ward of Court (withholding of medical treatment) (No. 1)  2IR 73.
3. The 2001 Act
12. Section 3 of the 2001 Act provides the following definitions:
“(1) In this Act, unless the context otherwise requires...
“child” means a person under the age of 18 years;
“Court”, in Parts 7 and 8, means the Children Court;”
Section 71 of the 2001 Act (which is in Part 7 of the Act) provides (in so far as relevant):
“(1)(a) The District Court, when hearing charges against children or when hearing applications for orders relating to a child at which the attendance of the child is required or when exercising any other jurisdiction conferred on the Children Court by or under this or any other Act ... shall be known as the Children Court and is referred to as “the Court” in this Part and Part 8.”
Section 75 of the 2001 Act provides (in so far as relevant):
“(1)...the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the Court is of the opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily.”
Section 93 of the 2001 Act (which is in Part 8 of the Act) provides (in so far as relevant):
“(1) In relation to any proceedings before the Court against a child or in relation to a child under Part 9-
(a) no report shall be published or included in a broadcast which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any child concerned in the proceedings, and
(b) no picture shall be published or included in a broadcast as being or including a picture of any child concerned in the proceedings or which is likely to lead to his or her identification.
. . .
(6) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court.”
13. The applicant complained under Article 6 § 1 of the Convention about the failure to protect him (by means of legislation or otherwise) from having his name and photograph published when he was a minor convicted of a serious criminal offence. He also complained under Article 14 of the Convention that, if he had been tried before the Children Court he would have been protected from such disclosure.
A. The parties’ submissions
1. The Government
14. The Government argued that the application should be rejected for non-exhaustion of domestic remedies since the applicant had failed to exhaust several remedies that were available to him. Firstly, it was open to the applicant to apply, pursuant to section 45 (1) of the 1961 Act, for an order preventing the publication of his identity since his case was a “minor matter” under subsection (c) and was of an “urgent nature” as provided for under subsection (a) of that section. This provision clearly ensured that the applicant had an accessible and effective remedy and was additional to, independent of and not affected by the provisions of the 2001 Act. The trial judge clearly had jurisdiction to make such an order and the applicant’s contention that the court had no such jurisdiction simply because the 2001 Act did not confer it was fundamentally misconceived. Irrespective of whether jurisdiction to make the requisite order had been conferred on the Court under the 2001 Act, it clearly had jurisdiction to grant such a remedy, if requested, on the basis of section 45 of the 1961 Act if it considered it appropriate and in the interests of justice so to do. The accessibility, adequacy and effectiveness of a section 45 Order were manifest and, if it had been sought, it would almost certainly have prevented the publication of the applicant’s identity not least because the gravity and consequences of breaching such an Order were well established as a matter of Irish law.
15. Secondly, even if it were the case that there was no statutory basis upon which the applicant could have obtained an Order preventing disclosure of his identity (and it is clear that section 45 of the 1961 Act provides precisely such a basis) the applicant could have sought relief on the basis of his personal rights under Article 40(3)(1) of the Constitution. The contention that, absent express statutory provision, a Court, by virtue of Article 34.1 of the Constitution, had no power or jurisdiction to make an order that a trial be conducted otherwise than in public or to impose a ban on reporting of the trial was rejected by the Supreme Court in Irish Times v. Ireland. The applicant could have invoked his Constitutional right to privacy and good name and relied upon the Supreme Court’s jurisprudence to establish that the Court had jurisdiction to prohibit publication of his name. Furthermore, if it was established that publication had breached his constitutional rights then it was open to the applicant to bring an action for damages post publication.
16. Thirdly, had an application to prevent publication of his identity failed (whether made pursuant to section 45 of the 1961 Act or pursuant to his Constitutional right to privacy) the applicant could have applied to the High Court for an interim injunction prohibiting publication pending the High Court’s review of the Circuit Court’s decision. The application for such an injunction could have been made to any one of 13 High Court judges who were sitting in the same building as the trial judge on the day in question. The threshold for leave to apply for judicial review was a low one and the likelihood was that an interim injunction would have been granted pending a full review. To protect his position in the short period between the conclusion of proceedings in the Circuit Criminal Court and the making of an application to the High Court, the applicant could have applied to the Circuit Court for a stay on its decision and it was difficult to conceive of circumstances in which the Circuit Court would have refused to grant such a request if it had been made.
17. Fourthly, the applicant could have appealed to the Court of Criminal Appeal in respect of the Circuit Court’s decision. In such proceedings, he could also have asked the Circuit Court for a stay or an injunction pending a decision of the Court of Criminal Appeal. Fifthly, the Circuit Court could have been requested to refer a question of law to the Supreme Court by way of case stated. Sixthly, the applicant could have commenced plenary proceedings in the High Court and sought injunctive relief and declarations that sections 3 and 93 of the 2001 Act were invalid having regard to Article 40(1) and (3) of the Constitution. Seventhly, in the event that the applicant did not obtain injunctive relief from the High Court, an appeal remained to the Supreme Court. Finally, following the decision of the Circuit Court, the applicant, through his counsel, had himself recognised that, notwithstanding the decision of the Circuit Court, he had “other remedies” available to him.
18. In any event, the Government contested that there had been a violation of Article 6 § 1, either separately or taken in conjunction with Article 14.
2. The applicant
19. The applicant maintained that he had exhausted all available domestic remedies. None of the remedies advanced by the Government were effective in the circumstances. The national broadcaster, RTE, included his case on its evening news programme at 6 p.m. that day, two hours after the Circuit Court’s decision and the High Court judges were not as readily available as the Government suggested. Moreover, the applicant was an indigent minor who was legally aided. The legal aid available to him did not cover the cost of proceedings other than in the criminal courts.
20. In relation to the first remedy, an Order under section 45 of the 1961 Act, the cited cases in which the Irish courts had made section 45 orders could be distinguished from the present case, as most of them did not concern the jurisdiction of criminal courts and it was questionable whether section 45 applied to criminal cases at all. Subsection (a) of section 45 could not apply because the proceedings were criminal and did not concern an application “of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction”. Instead the proceedings in question were governed by the 2001 Act. Furthermore, section 45 dealt only with the administration of justice otherwise than in public but did not provide for the press to be excluded or their power to publish or broadcast to be restricted.
21. For the second remedy, a claim based on Article 40(3)(1) of the Constitution, the Irish courts had no general discretion to direct that proceedings be heard in camera. The relevant case-law related to restrictions of publicity in order to protect the right to a fair trial, which could not apply in the present case since the trial had concluded. In any event, the issue in the present case was anonymity, not holding hearings in camera and there were statutory provisions for granting anonymity, none of which applied to the applicant.
22. The third and sixth remedies, applying to the High Court for leave to apply for judicial review of the Circuit Court’s decision or the issuing of plenary proceedings in the High Court, were not available for the practical reasons set out above. The same considerations applied to the fourth remedy, appeal to the Court of Criminal Appeal. Furthermore, the jurisdiction of that court was limited to appeal against sentence and the same Act, the Children Act 2001, applied to proceedings before it. The fifth remedy, appeal to the Supreme Court by way of case stated, was not possible because the trial judge had refused to state case. The seventh remedy suggested by the respondent Government, an appeal to the Supreme Court, was not possible as proceedings would need to have been brought firstly in the High Court. The applicant, an indigent minor, could not have brought such proceedings in his own right and it was likely that legal aid would not have been available.
B. The Court’s assessment
23. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems’ safeguarding of human rights (Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 IV). The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see T. v. the United Kingdom, cited above, § 55); NA. v. the United Kingdom, no. 25904/07, § 88, 17 July 2008; and D. v. Ireland (dec.), no. 26499/02, §§ 83 and 84, 27 June 2006).
24. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000). However, the Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005).
25. In the present case, the Court accepts that the applicant’s trial generated a great deal of publicity and this publicity meant it was likely that the media would want to reveal his name and other details of the case at the earliest possible opportunity. The Court also accepts that this meant the applicant had less time to challenge the trial judge’s ruling than would otherwise have been the case, particularly, when the earliest opportunity for publication would have been the evening news programmes, which were due to be aired within hours of the conclusion of the trial. However, the Court is not convinced that the applicant could not have sought an order from the trial judge pursuant to section 45(1)(a) or (c) of the 1961 Act. If he had failed, then even making due allowance for the practical realities appertaining at the time, the applicant could have applied to the High Court for an interim injunction prohibiting publication pending the High Court’s review of the Circuit Court’s decision. The Court takes note of the differing interpretations of section 45(1) advanced by the parties. It also recalls that it is not its task to interpret domestic law (Tejedor García v. Spain, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2796, § 31). In the Court’s view, therefore, any doubts as to whether section 45(1) applied to the present case could and should have been resolved before the domestic courts. Moreover, the Court accepts the Government’s submission that High Court judges were available on the day in question (and indeed sitting in the same court building) and could have taken an urgent application for an interim injunction had it been brought. The Court does not regard the absence of legal aid as a sufficient reason for failing to do so.
26. The fact that the applicant was not entitled to legal aid outside the criminal proceedings which had just concluded would not, in itself, have prevented his counsel in those proceedings from immediately seeking a section 45 order from the trial judge. In any case, the applicant does not suggest that his legal representatives would have refused to seek such an order. Even if future proceedings might have taken place in the High Court, in the circumstances of the present case, where the trial had taken place in the same building as the High Court, where the applicant’s legal representatives were still present and, in particular, where the procedure for applying for an interim injunction from the High Court would have been relatively straightforward, it cannot be said that legal aid was required so as to make those future proceedings effective (see, mutatis mutandis, Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005 II). Furthermore, the Court is also satisfied that if it was established that the publication had breached the applicant’s constitutional right to privacy then it was open to him to bring an action for damages in this regard, which he failed to do.
27. The Court considers that, in light of this conclusion, it is not necessary to consider the effectiveness of the remainder of remedies advanced by the Government. Accordingly, the Court concludes that the application should be dismissed for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall