CASE OF AIREY v. IRELAND

1. The Airey case was referred to the Court by the European Commission of Human Rights ("The Commission"). The case originated in an application against Ireland lodged with the Commission on 14 June 1973 under Article 25 (art. 25) of the Convention by an Irish national, Mrs. Johanna Airey.
2. The Commission ’ s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was filed with the registry of the Court on 16 May 1978, within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by Ireland recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission ’ s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Articles 6 para. 1, 8, 13 and 14 (art. 6-1, art. 8, art. 13, art. 14).
3. The Chamber of seven judges to be constituted included, as ex officio members, Mr. P. O ’ Donoghue, the elected judge of Irish nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 31 May 1978, the President of the Court drew by lot, in the presence of the Deputy Registrar, the names of the five other members, namely Mr. J. Cremona, Mr. Thór Vilhjálmsson, Mr. W. Ganshof van der Meersch, Mr. L. Liesch and Mr. F. Gölcüklü (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5). He was subsequently prevented from taking part in the consideration of the case and was replaced by Mr. Wiarda, the Vice-President of the Court (Rule 21 paras. 3(b) and 5). At a later stage and for the same reason the first substitute judge, Mr. Evrigenis, replaced Mr. Cremona (Rule 22 para. 1).
4. The President of the Chamber ascertained, through the Deputy Registrar, the views of the Agent of the Government of Ireland ("the Government") and the Delegates of the Commission regarding the procedure to be followed. On 15 July 1978, he decided that the Agent should have until 17 October 1978 to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government ’ s memorial to them by the Registrar.
The Government ’ s memorial was received at the registry on 16 October 1978. On 15 December 1978, the Delegates of the Commission filed a memorial, together with the applicant ’ s observations on the Government ’ s memorial; they lodged a further document on 22 January 1979.
5. After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President decided on 1 February 1979 that the oral hearings should open on 22 February 1979.
6. The oral hearings were held in public at the Human Rights Building, Strasbourg, on 22 February 1979. The Court had held a short preparatory meeting earlier that morning.
There appeared before the Court:
Mrs. J. LIDDY, Assistant Legal Adviser,
Department of Foreign Affairs, Agent,
Mr. J. COOKE, Barrister-at-Law, Counsel,
Mr. L. DOCKERY, Chief State Solicitor
Mr. A. PLUNKETT, Legal Assistant,
Attorney-General ’ s Office, Advisers;
Mr. J. FAWCETT, Principal Delegate,
Senator M. ROBINSON, Barrister-at-Law, and
Mr. B. WALSH, Solicitor, who had represented the applicant
before the Commission, assisting the Delegates under
Rule 29 para. 1, second sentence, of the Rules of Court.
The Court heard addresses by Mr. Fawcett, Mr. Opsahl and Senator Robinson for the Commission and by Mr. McCarthy for the Government, as well as their replies to questions put by the Court and by its President.
At the hearings, the Commission produced a document to the Court.
7. On the Court ’ s instructions, the Registrar transmitted to the Agent of the Government on 26 February 1979 certain questions on a particular aspect of the case. Replies thereto were received at the registry on 26 March 1979 and were communicated on the same day to the Delegates of the Commission. On 6 April 1979, the Deputy Secretary to the Commission advised the Registrar that the Delegates had no observations to make on those replies.
8. Mrs. Johanna Airey, an Irish national born in 1932, lives in Cork. She comes from a humble family background and went to work at a young age as a shop assistant. She married in 1953 and has four children, the youngest of whom is still dependent on her. At the time of the adoption of the Commission ’ s report, Mrs. Airey was in receipt of unemployment benefit from the State but, since July 1978, she has been employed. Her net weekly wage in December 1978 was £39.99. In 1974, she obtained a court order against her husband for payment of maintenance of £20 per week, which was increased in 1977 to £27 and in 1978 to £32. However, Mr. Airey, who had previously been working as a lorry driver but was subsequently unemployed, ceased paying such maintenance in May 1978.
Mrs. Airey alleges that her husband is an alcoholic and that, before 1972, he frequently threatened her with, and occasionally subjected her to, physical violence. In January 1972, in proceedings instituted by the applicant, Mr. Airey was convicted by the District Court of Cork City of assaulting her and fined. In the following June he left the matrimonial home; he has never returned there to live, although Mrs. Airey now fears that he may seek to do so.
9. For about eight years prior to 19 72, Mrs. Airey tried in vain to conclude a separation agreement with her husband. In 1971, he declined to sign a deed prepared by her solicitor for the purpose and her later attempts to obtain his co-operation were also unsuccessful.
Since June 1972, she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. Airey ’ s alleged physical and mental cruelty to her and their children, and has consulted several solicitors in this connection. However, she has been unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor willing to act for her.
In 1976, Mrs. Airey applied to an ecclesiastical tribunal for annulment of her marriage. Her application is still under investigation; if successful, it will not affect her civil status.
10. In Ireland, although it is possible to obtain under certain conditions a decree of nullity - a declaration by the High Court that a marriage was null and void ab initio -, divorce in the sense of dissolution of a marriage does not exist. In fact, Article 41.3.2 o of the Constitution provides: "No law shall be enacted providing for the grant of a dissolution of marriage."
However, spouses may be relieved from the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro ). Such a decree has no effect on the existence of the marriage in law. It can be granted only if the petitioner furnishes evidence proving one of three specified matrimonial offences, namely, adultery, cruelty or unnatural practices. The parties will call and examine witnesses on this point.
By virtue of section 120 (2) of the Succession Act 1965, an individual against whom a decree of judicial separation is granted forfeits certain succession rights over his or her spouse ’ s estate.
11. Decrees of judicial separation are obtainable only in the High Court. The parties may conduct their case in person. However, the Government ’ s replies to questions put by the Court (see paragraph 7 above) reveal that in each of the 255 separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer.
In its report of 9 March 1978, the Commission noted that the approximate range of the costs incurred by a legally represented petitioner was £500 - £700 in an uncontested action and £800 - £1,200 in a contested action, the exact amount depending on such factors as the number of witnesses and the complexity of the issues involved. In the case of a successful petition by a wife, the general rule is that the husband will be ordered to pay all costs reasonably and properly incurred by her, the precise figure being fixed by a Taxing Master.
Legal aid is not at present available in Ireland for the purpose of seeking a judicial separation, nor indeed for any civil matters. In 1974, a Committee on Civil Legal Aid and Advice was established under the chairmanship of Mr. Justice Pringle. It reported to the Government in December 1977, recommending the introduction of a comprehensive scheme of legal aid and advice in this area. At the hearings on 22 February 1979, counsel for the Government informed the Court that the Government had decided in principle to introduce legal aid in family-law matters and that it was hoped to have the necessary measures taken before the end of 1979.
12. Since Mrs. Airey ’ s application to the Commission, the Family Law (Maintenance of Spouses and Children) Act 1976 has come into force. Section 22 (1) of the Act provides:
"On application to it by either spouse, the court may, if it is of the opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it, order the other spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and whether the other spouse is or is not residing at that place, prohibit him from entering that place until further order by the court or until such other time as the court shall specify."
Such an order - commonly known as a barring order - is not permanent and application may be made at any time for its discharge (section 22 (2)). Furthermore, the maximum duration of an order given in the District Court - as opposed to the Circuit Court or the High Court - is three months although provision is made for renewal.
A wife who has been assaulted by her husband may also institute summary criminal proceedings.
PROCEEDINGS BEFORE THE COMMISSION
13. In her application of 14 June 1973 to the Commission, Mrs. Airey made various complaints in connection with the 1972 proceedings against her husband, with a claimed assault on her by the police in 1973 with the unlawful detention she affirms she underwent in 1973. Her main complaint was that the State had failed to protect her against physical and mental cruelty from her allegedly violent and alcoholic husband:
- by not detaining him for treatment as an alcoholic;
- by not ensuring that he paid maintenance to her regularly;
- in that, because of the prohibitive cost of proceedings, she could not obtain a judicial separation.
As regards the last item, the applicant maintained that there had been violations of:
- Article 6 para. 1 (art. 6-1) of the Convention, by reason of the fact that her right of access to a court was effectively denied;
- Article 8 (art. 8), by reason of the failure of the State to ensure that there is an accessible legal procedure to determine rights and obligations which have been created by legislation regulating family matters;
- Article 13 (art. 13), in that she was deprived of an effective remedy before a national authority for the violations complained of;
- Article 14 in conjunction with Article 6 para. 1 (art. 14+6-1), in that judicial separation is more easily available to those who can afford to pay than to those without financial resources.
14. On 7 July 1977, the Commission accepted the application in so far as Mrs. Airey complained of the inaccessibility of the remedy of a judicial separation and declared inadmissible the remainder of the application.
In its report of 9 March 1978, the Commission expresses the opinion:
- unanimously, that the failure of the State to ensure the applicant ’ s effective access to court to enable her to obtain a judicial separation amounts to a breach of Article 6 para. 1 (art. 6-1);
- that, in view of the preceding conclusion, there is no need for it to examine the case under Articles 13 and 14 (art. 13, art. 14) (unanimously) or under Article 8 (art. 8) (twelve votes to one, with one abstention).
FINAL SUBMISSIONS AND OBSERVATIONS MADE TO THE COURT
15. At the hearings on 22 February 1979, the Government maintained the following submissions made in their memorial:
"The Court is asked to find that the Commission should not have declared this application admissible.
The Court is asked to find that even if the case was correctly admitted by the Commission, it should have been dismissed on the merits.
The respondent Government is not in breach of its obligations under the European Convention on Human Rights."
On the same occasion, counsel for Mrs. Airey resumed her client ’ s position as follows:
"The applicant claims that the total inaccessibility and exclusiveness of the remedy of a judicial separation in the High Court is a breach of her right of access to the civil courts which the Irish Government must secure under Article 6 para. 1 (art. 6-1); she submits that the absence of a modern, effective and accessible remedy for marriage breakdown under Irish law is a failure to respect her family life under Article 8 (art. 8); she submits that the exorbitantly high cost of obtaining a decree of judicial separation, which results in fewer than a dozen decrees in any year, constitutes a discrimination on the ground of property in violation of Article 14 (art. 14); and she submits that she lacks an effective remedy under Irish law for her marriage breakdown and that this in itself is a breach of Article 13 (art. 13)."
16. The Government plead that Mrs. Airey ’ s application was inadmissible on the ground, firstly, that it was manifestly ill-founded and, secondly, that she had not exhausted domestic remedies.
According to the Commission, whilst the Court undoubtedly has jurisdiction to determine all issues of fact or of law arising in the course of the proceedings, it is not within the Court ’ s competence to hold that the Commission erred in declaring an application admissible. At the hearings, the Principal Delegate expressed the opinion that issues related to the admissibility decision are examined by the Court as questions going to the merits of the case and not in the capacity of a court of appeal.
17. The Court has established two principles in this area. One is that the Commission ’ s decisions by which applications are accepted are without appeal; the other is that, once a case is referred to it, the Court is endowed with full jurisdiction and may determine questions as to admissibility previously raised before the Commission (see, inter alia, the Klass and others judgment of 6 September 1978, Series A no. 28, p. 17, para. 32). A combination of these principles shows that, when considering such questions, the Court is not acting as a court of appeal but is simply ascertaining whether the conditions allowing it to deal with the merits of the case are satisfied.
18. A submission by a Government to the Court that an application is manifestly ill-founded does not in reality raise an issue concerning those conditions. It amounts to pleading that there is not even a prima facie case against the respondent State. A plea to this effect is an objection of which the Commission must take cognisance before ruling on admissiblity (Article 27 para. 2 of the Convention) (art. 27-2); once it has dismissed any such objection, the Commission is normally required, after examining the merits of the case, to state an opinion as to whether or not there has been a breach (Article 31) (art. 31). On the other hand, the distinction between finding an allegation manifestly ill-founded and finding no violation is devoid of interest for the Court, whose task is to hold in a final judgment that the State concerned has observed or, on the contrary, infringed the Convention (Articles 50, 52 and 53) (art. 50, art. 52, art. 53).
The same does not apply to a submission that domestic remedies have not been exhausted. The rule embodied in Article 26 (art. 26) "dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system" (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 29, para. 50); it concerns the possibility in law of bringing into play a State ’ s responsibility under the Convention. It is thus clear that such a submission may well raise issues distinguishable from those relating to the merits of the allegation of a violation.
Accordingly, the Court does not have to rule on the first of the preliminary pleas relied on by the Government but must do so on the second; this latter plea was, moreover, raised by the Government before the Commission so that there is no question of estoppel ( forclusion ) (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 30, para. 54).
19. The Government maintain that the applicant failed to exhaust domestic remedies in various respects.
(a) In the first place, they contend that she could have entered into a separation deed with her husband or could have applied for a barring order or for maintenance under the 1976 Act (see paragraphs 10 and 12 above).
The Court emphasises that the only remedies which Article 26 (art. 26) of the Convention requires to be exercised are remedies in respect of the violation complained of. The violation alleged by Mrs. Airey is that in her case the State failed to secure access to court for the purpose of petitioning for judicial separation. However, neither the conclusion of a separation deed nor the grant of a barring or a maintenance order provide such access. Accordingly, the Court cannot accept the first limb of this plea.
(b) In the second place, the Government lay stress on the fact that the applicant could have appeared before the High Court without the assistance of a lawyer. They also contend that she has nothing to gain from a judicial separation.
The Court recalls that international law, to which Article 26 (art. 26) makes express reference, demands solely recourse to such remedies as are both" available to the persons concerned and ... sufficient, that is to say capable of providing redress for their complaints" (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 33, para. 60). However, the Court would not be able to decide whether the possibility open to Mrs. Airey of conducting her case herself amounts to a "domestic remedy", in the above sense, without at the same time ruling on the merits of her complaint under Article 6 para. 1 (art. 6-1), namely the alleged lack of effective access to the High Court. Similarly, the argument that a judicial separation would be of no benefit to the applicant appears intimately connected with another aspect of this complaint, namely whether any real prejudice was occasioned. The Court therefore joins to the merits the remainder of the plea.
II. ON ARTICLE 6 PARA. 1 TAKEN ALONE (art. 6-1)
20. Article 6 para. 1 (art. 6-1) reads as follows:
"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 interests 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."
Mrs. Airey cites the Golder judgment of 21 February 1975 (Series A no. 18) where the Court held that this paragraph embodies the right of access to a court for the determination of civil rights and obligations; she maintains that, since the prohibitive cost of litigation prevented her from bringing proceedings before the High Court for the purpose of petitioning for judicial separation, there has been a violation of the above-mentioned provision.
This contention is unanimously accepted in substance by the Commission but disputed by the Government.
21. The applicant wishes to obtain a decree of judicial separation. There can be no doubt that the outcome of separation proceedings is "decisive for private rights and obligations" and hence, a fortiori, for "civil rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1); this being so, Article 6 para. 1 (art. 6-1) is applicable in the present case (see the König judgment of 28 June 1978, Series A no. 27, pp. 30 and 32, paras. 90 and 95). Besides, the point was not contested before the Court.
22. "Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal" (above-mentioned Golder judgment, p. 18, para. 36). Article 6 para. 1 (art. 6-1) accordingly comprises a right for Mrs. Airey to have access to the High Court in order to petition for judicial separation.
23. It is convenient at this juncture to consider the Government ’ s claim that the applicant has nothing to gain from a judicial separation (see paragraph 19 (b) above).
The Court rejects this line of reasoning. Judicial separation is a remedy provided for by Irish law and, as such, it should be available to anyone who satisfies the conditions prescribed thereby. It is for the individual to select which legal remedy to pursue; consequently, even if it were correct that Mrs. Airey ’ s choice has fallen on a remedy less suited than others to her particular circumstances, this would be of no moment.
24. The Government contend that the application does enjoy access to the High Court since she is free to go before that court without the assistance of a lawyer.
The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 31, paras. 3 in fine and 4; the above-mentioned Golder judgment, p. 18, para. 35 in fine; the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, pp. 17-18; para. 42; and the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25). It must therefore be ascertained whether Mrs. Airey ’ s appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.
Contradictory views on this question were expressed by the Government and the Commission during the oral hearings. It seems certain to the Court that the applicant would be at a disadvantage if her husband were represented by a lawyer and she were not. Quite apart from this eventuality, it is not realistic, in the Court ’ s opinion, to suppose that, in litigation of this nature, the applicant could effectively conduct her own case, despite the assistance which, as was stressed by the Government, the judge affords to parties acting in person.
In Ireland, a decree of judicial separation is not obtainable in a District Court, where the procedure is relatively simple, but only in the High Court. A specialist in Irish family law, Mr. Alan J. Shatter, regards the High Court as the least accessible court not only because "fees payable for representation before it are very high" but also by reason of the fact that "the procedure for instituting proceedings ... is complex particularly in the case of those proceedings which must be commenced by a petition", such as those for separation (Family Law in the Republic of Ireland, Dublin 1977, p. 21).
Furthermore, litigation of this kind, in addition to involving complicated points of law, necessitates proof of adultery, unnatural practices or, as in the present case, cruelty; to establish the facts, expert evidence may have to be tendered and witnesses may have to be found, called and examined. What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.
For these reasons, the Court considers it most improbable that a person in Mrs. Airey ’ s position (see paragraph 8 above) can effectively present his or her own case. This view is corroborated by the Government ’ s replies to the questions put by the Court, replies which reveal that in each of the 255 judicial separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer (see paragraph 11 above).
The Court concludes from the foregoing that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access and, hence, that it also does not constitute a domestic remedy whose use is demanded by Article 26 (art. 26) (see paragraph 19 (b) above).