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The Donnelly Case, Administrative Practice and Domestic Remedies Under the European Convention: One Step Forward and Two Steps Back

Published online by Cambridge University Press:  27 February 2017

Hurst Hannum  and
Kevin Boyle
Hurst Hannum
Affiliation:
J.D., University of California, Berkeley; member of the California Bar.
Kevin Boyle
Affiliation:
Queen’s University of Belfast, Northern Ireland; Barrister-at-Law.
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Type
Notes and Comments
Information
American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 316 - 322
Copyright
Copyright © The American Society of International Law 1977

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References

1 Applications Nos. 5577–5583/72, Decision on Admissibility of 5 April 1973, 16 Yearbook of The European Convention on Human Rights 212 (1973) (hereinafter Yearbook).

2 Applications Nos. 5577–5583/72, Final Decision of the Commission taken under Articles 26, 27 and 29 of the Convention, 15 December 1975 (hereinafter cited as Final Decision).

3 Id. 86.

4 Boyle, K. and Hannum, H., Individual Applications under the European Convention on Human Rights and the Concept of Administrative Practice: the Donnelly Case, 68 AJIL 440 (1974)CrossRefGoogle Scholar.

5 Applications Nos. 3321, 3322, 3323, 3344/67, Denmark et al. v. Greece, 12 Yearbook, Supp. The Greek Case, 194–96 (1969).

6 Boyle and Hannum, supra note 4, at 445, 456.

7 Supra note 1, at 260.

8 Id. 262.

9 Id. 266.

10 Final Decision 61.

11 Id. 65.

12 Application No. 788/60, Austria v. Italy, 4 Yearbook 116 (1961); Boyle and Hannum, supra note 4, at 447—49.

13 Final Decision 75. Between August 9, 1971 and September 30, 1975, 798 tort actions alleging assaults by the security forces were commenced in Northern Ireland, of which number 222 cases were settled out of court during the same period for damages totalling £420,000. Id. 45.

14 Id. 65–75.

15 Id. 76.

16 Id. 81–82.

17 Id. 33–35, 44–49.

18 Id. 82.

19 Id. 84.” Four of the applicants accepted out–of–court settlements ranging from £300 to £6,000.

20 Id. 85–86. Article 29, as amended by Protocol No. 3 to the Convention, provides that, after it has accepted an application under Article 25, the Commission may nevertheless unanimously decide to reject the application if, in the course of its examination, it finds that the existence of one of the grounds for nonacceptance provided for in Article 27 has been established. Cf. Castberg, F., The European Conventiox on Human Rights 66–67 (1974)Google Scholar.

21 Supra note 1, at 262.

22 Cf. McGovern, , The Local Remedies Rule and Administrative Practises in the European Convention on Human Rights, 24 Int. Comp. L.Q. 121 (1975)CrossRefGoogle Scholar.

23 Supra note 5, at 194.

See Final Decision 5, 9, 49.

25 Id. 76, 82.

26 See Article 15 of the Convention; Cf. Jacobs, F. G., The European Convention on Human Rights 201–02, 204–09 (1975)Google Scholar; and Fawcett, J. E. S., The Application of the European Convention on Human Rights 245–50 (1969)Google Scholar.

27 Final Decision 54.

28 Boyle and Hannum, supra note 4, at 453.

29 Final Decision 36. In the recently published Report of the interstate proceedings, arising out of the Northern Ireland situation, Ireland v. United Kingdom, the Commission concluded, inter alia, that the application of certain techniques of interrogation against detainees, at an unknown interrogation center, on various dates from August 1971, constituted a practice of inhuman treatment and torture in breach of Article 3 of the Convention. It was further held that in the fall of 1971, there had been a practice of inhuman treatment at one other interrogation center, which had been tolerated at the level of the government authorities. Application No. 5310/71, Ireland against the United Kingdom of Great Britain and Northern Ireland, Report of the Commission (adopted on January 25, 1976).