PROCEDURE

The case originated in an application (no. 24265/94) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish citizen, Mr Liam Devenney (“the applicant”), on 12 April 1994.

The applicant, who had been granted legal aid, was represented by P. J. McGrory and Company, a firm of solicitors practising in Belfast. The Government of the United Kingdom and Northern Ireland (“the Government”) were represented by their Agent, Mr C. Whomersley.

The applicant invoked Articles 6, 13 and 14 of the Convention. He alleged that the issue of a certificate emanating from the Secretary of State, under section 42 of the Fair Employment (Northern Ireland) Act 1976, which was deemed conclusive evidence that the applicant’s employment was terminated for the purpose of protecting public safety and public order, operated under the terms of the 1976 Act to deny him access to a court or tribunal, in violation of Article 6 § 1. He also claimed that he had no effective remedy before a national authority in breach of Article 13, and that he has been discriminated against contrary to Article 14 in conjunction with Article 6.

The application was declared admissible by the Commission on 24 February 1997 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr M.P. Pellonpää, the judge elected in respect of Finland, to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 1).

In the light of the similarities between the present application and the Court’s judgment of 10 July 1998 in the case of Tinnelly and Sons Ltd and Others and McElduff and Others v. the United Kingdom (Reports of Judgments and Decisions 1998-IV, p. 1643), neither the Government nor the applicant filed observations on the merits (Rule 59 § 1). Submissions were made concerning just satisfaction under Article 41 of the Convention.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 18 August 1992, the applicant began work in the Culloden Hotel, Belfast, as a silver service waiter. This hotel is owned by Moyola Cellars Limited, which is subsidiary of Hastings Hotels Group Limited. Initially the applicant had been doing very well and was optimistic about promotion. On 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 believes 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.

By a letter of 22 December 1992, the applicant’s solicitors wrote to the Chief Constable of the Royal Ulster Constabulary (“RUC”) stating that they had been informed that the reason for the applicant’s dismissal from his employment at the Culloden Hotel was an approach made to the Hotel by members of the RUC who had stated that the applicant was a suspect. The solicitors requested that the RUC provide information as to what the applicant was suspected of and on what basis the applicant had been allegedly described as a suspect. The RUC replied to this letter, stating that they were unable to comment on such matters, it not being force policy to do so.

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 stated that he did not know the basis upon which the certificate was issued. He had never been shown, and was 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 did not know whether this information was correct or incorrect, whether it was complete or incomplete, and whether it was reliable or not. Nor did he know whether the information provided could reasonably support the view expressed in the certificate.

The matter first came before the Fair Employment Tribunal on 3 June 1994. On that occasion the Tribunal declared that the certificate presented did not affect the applicability of the Fair Employment Acts to the dismissal of the applicant by Moyola Cellars Limited, since the certificate referred to an act done by the Hastings Hotel Group.

At a resumed hearing on 5 January 1995 the Fair Employment Tribunal were presented with a new certificate signed by the Secretary of State for Northern Ireland and certifying that the decision by Moyola Cellars Limited to terminate its contract of employment with the applicant was for the purpose of protecting public safety and public order. In light of the certificate, the Fair Employment Tribunal 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 and accordingly that: “there is nothing for this Tribunal to consider in relation to that act [of termination].” The tribunal dismissed the applicant’s complaints in relation to his dismissal and the manner of his dismissal.