4.3 The State party further submits that the author failed to request the judges of the Special Court to disqualify themselves on the grounds that they were not independent and impartial. In this connection, the State party notes that the author, in fact, has not alleged any bias against the judges of the court which tried him. His argument seems to be that by virtue of the method of appointment and dismissal of the members of the Court a lack of independence and impartiality could arise, not that it did. Government who decides which cases are to be brought before a special court. The author quotes from section 39 of the Offences against the State Act, which provides that members of special courts are appointed and removed at will by the Government. The remuneration, if any, is determined by the Ministry for Finance. Members of special courts need not be members of the judiciary; barristers and solicitors of at least seven years standing and high ranking officers of the Defence Forces may also be appointed. 4.4 The State party explains that the Special Court is subject to control through judicial review by the High Court. A person who alleges a breach of the constitution or of natural justice can seek an order from the High Court quashing a decision by the Special Criminal Court or prohibiting it from acting contrary to the Constitution or to the rules of natural justice. If the author would have had reason to argue that he had not received a fair trial in the Special Court, he could therefore have sought an order of judicial review from the High Court, which he failed to do. 3.2 The author contends that the special courts represent a threat to the equality of treatment of those accused of crimes, because the independence of the members of such courts is not protected. In this context, the author refers to the judgment in his case, which appeared to sentence him for a more serious offence that for which he had been charged. 3.3 The author further alleges that he was discriminated against in the prison system because he "fought for his rights" through the courts in order to have his proper entitlement to parole established. He states that two of his co-accused, who received the same sentence, were moved to an open prison in 1992 and early 1993, whereas the author was only moved to an open prison in the beginning of 1994. The author points out that regular weekend home visits are allowed from an open prison, whereas he was unable to obtain permission to visit his sister in hospital before she died on 22 December 1993; he was granted parole from 22 to 27 December 1993, after she had already died. 4.5 In this context, the State party refers to the Supreme Court's decision in the Eccles case1, where it was held that the Government could not lawfully terminate the appointment of individual members of the Special Court for disagreeing with their decisions. The Court found that whereas the express constitutional guarantees of judicial independence did not apply to the Special Court, it enjoyed a derived guarantee of independence in carrying out its function. 4.6 The State party also argues that it would have been open to the author to argue at the hearing of his appeal that his conviction was defective by reason of lack of independence of the judges. The State party notes that the author, however, failed to appeal against his conviction and made no allegation that the Special Court was biased or lacked independence. State party's submission and the author's comments 4.1 By submission of 5 December 1994, the State party argues that the communication is inadmissible ratione temporis, since the substance of the author's complaint relates to his trial in the Special Criminal Court on 27 June 1989, that is before the entry into force of the Covenant and its Optional Protocol for Ireland. 4.7 Further, the State party argues that the author has not shown that he is personally a victim of the violation alleged. The State party refers to the author's argument that under the applicable legislation the independence of the court cannot be guaranteed. The State party submits that this is an argument of an actio popularis, since the author does not argue that the judges who tried him did in fact lack independence or that they were biased against him, nor does he specify any shortcoming in the proceedings. In this context, the State party refers to the decision by the European Commission on Human Rights in the Eccles case2, which found that 4.2 The State party further argues that the communication is inadmissible for failure to exhaust domestic remedies. It notes that the essence of the author's claim is that he did not receive a fair trial before an independent and impartial tribunal and that he claims that he was innocent of the offences with which he was charged. However, the author withdrew his plea of not guilty, leaving the trial court with no option but to accept his acknowledgement and sentence him accordingly. The State party submits that he might have been acquitted, had he pleaded not guilty. It contests the author's suggestion that persons tried in the Special Criminal Courts are invariably convicted. 1 2 Eccles v. Ireland [1985] I.R. 545. Eccles e.a. v. Ireland, application No. 12839/87, decision of 9 December 1988. 6