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You are here: BAILII >> Databases >> European Court of Human Rights >> MC FARLANE v. IRELAND - 31333/06 [2010] ECHR 1272 (10 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1272.html
Cite as: [2010] ECHR 1272
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GRAND CHAMBER
CASE OF MC FARLANE v. IRELAND
(Application no. 31333/06)
JUDGMENT
STRASBOURG
10 September 2010
This judgment is final but may be subject to editorial revision.
In the case of McFarlane v. Ireland,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Christos Rozakis,
President,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Elisabet Fura,
Alvina Gyulumyan,
Ljiljana Mijović,
Dean Spielmann,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ledi Bianku,
Ann Power, judges,
and Vincent Berger, Jurisconsult,
Having deliberated in private on 3 March 2010 and on 23 June 2010,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
(a) for the Government
Mr J. Kingston, Agent,
Mr M. Collins,
Mr B. Murray,
Ms U. Ni Raifeartaigh, Senior
Counsel,
Ms M. Cooke,
Ms O. McPhillips, Advisers;
(b) for the applicant
Mr J. MacGuill, Solicitor,
Ms A. McCumiskey, Adviser.
The Court heard addresses by Messrs Murray, Collins and MacGuill.
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. The applicant's arrest and the criminal proceedings
19. A trial date was fixed for 23 November 1999.
1. The first prohibition action
(a) High Court ([2004] IEHC 246)
(b) Supreme Court ([2006] IESC 11)
2. The second prohibition action
(a) High Court ([2006] IEHC 389)
(b) Supreme Court ([2008] IESC 7)
37. Referring to the approach of Keane CJ in P.M. v Malone ([2002] 2 I.R. 560) and to the reiteration of that approach by Kearns J. in P.M. v DPP ([2006] 3 IR 172), Fennelly J. considered that it was necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant's right to a trial with due expedition and, secondly, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the Director of Public Prosecutions (“DPP”) from continuing with his prosecution.
As to the first question, Fennelly J. considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment (July 2003-January 2005). However, the applicant had taken no steps to expedite the appeal, probably because of the High Court prohibition order. While this delay was significant, in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him.
As to the second question, and even assuming there had been a breach of his constitutional right to an expeditious hearing, the circumstances did not warrant a prohibition order: any delay of 1-2 years was not significant in the trial for offences alleged to have been committed in 1983. As to his anxiety caused by delay, he was, during that period of delay, the holder of an order of the High Court prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them. In addition, the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review.
“74. I made a similar observation in my own judgment in [T.H. v DPP].
These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and [P.M. v DPP]. That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland ..., the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted):
'The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities....... On the latter point, what is at stake for the applicant in the litigation has to be taken into account.'
75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court's response to that argument (at paragraph [53]) was:
'There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available ... .'
76. ... in [the Barry] case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, [if they were claimed]. Any such claim would have to be made in the High Court in the first instance. The [European Convention of Human Rights Act 2003] might be relevant.
77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in [Barry v DPP], which ... [the Court] also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the [European Convention of Human Rights Act 2003] may or may not be relevant.”
“This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. ...
That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called 'prosecutorial delay', may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.
Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. 'Systemic delay' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen's constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular Article 6 thereof ...
In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay.....”
“I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case.”
C. Dismissal of the criminal charges
D. Second application to this Court (No. 25100/08)
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Irish Constitution
47. Article 35(2) of the Constitution reads as follows:
“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”.
48. Article 38(1) of the Constitution provides that:
“No person shall be tried on any criminal charge save in due course of law”.
49. Article 40(3)(1) of the Constitution also provides that:
“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.”
B. Courts and Court Officers Act 2002 (“the 2002 Act”)
C. Working Group on a Court of Appeal, May 2009
“In recent years there have been significant changes in Irish society. Ireland's population has grown from 3.5 million in 1991 to over 4.2 million in 2006. There has been an increase in economic activity and demographic diversity. Changes in social and public policy have occurred. International developments now have a greater impact on Irish affairs and the courts.
These changes have had important implications for the Irish legal system. In particular, the High Court and Supreme Court have experienced a significant expansion in litigation.
Despite the relative success of the courts in introducing procedures to deal with these developments, the current Superior Court structure was not designed to cope with developments of such a profound nature. There has been a need for some time to conduct a strategic review of the current Superior Court structure.
In December 2006 the Government decided to set up a Working Group to consider the question of establishing a Court of Appeal, with the following terms of reference:
'(a) to review and consider the necessity for a general Court of Appeal for the purpose of processing certain categories of appeals from the High Court.
(b) to address and consider such legal changes as are necessary for the purposes of establishing a Court of Appeal, and
(c) to make such other recommendations as are appropriate for the purposes of ensuring greater efficiencies in the practices and procedures of the Superior Courts.'
“The Supreme Court has seen a significant increase in the volume and complexity of its appellate caseload. Unsurprisingly, this greater volume of cases has created a backlog of appeals in the Supreme Court. This has led to longer delays in the Supreme Court, with some cases now taking as much as 30 months to get a hearing .... A delay in determining these appeals can cause uncertainty for individuals, for businesses and for government. It can put unnecessary emotional and financial pressure on litigants. It leaves others unsure about the law, which inhibits their ability to organise and plan their affairs. In short, delays create confusion and costs and are bad for business. This situation poses serious problems for the Irish legal system and for Irish society as a whole.”
55. As to Ireland's efforts to comply with its Convention obligations, the Report continued:
“The increase in judicial appointments to the High Court has alleviated these difficulties at that level. As this chapter has already noted, however, the fact that the two-division Supreme Court is obliged to deal with all Superior Court civil appeals means that there is a significant risk of delays of the sort impugned in McMullen, Doran, O'Reilly and Barry occurring at appellate level.
...
The European Court of Human Rights has identified delays caused by the courts themselves (as a result of logistical pressures) as the key factors offending the requirements of Article 6 in each case. Violations have been found, as in [Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, 29 July 2003], where the courts themselves were held to have acted reasonably in respect of the relevant proceedings. The State is obliged to organise its system to avoid the risk of parties unduly delaying their proceedings. It must also therefore be required to ensure that the structure of the legal system itself does not generate undue delays. The institutional bottleneck at Supreme Court level has just such an effect on our system.”
D. Prohibition orders on grounds of delay
56. In the case of Ivor Sweetman v. the DPP, the Minister for Justice, Equality and Law Reform and the Attorney General ([2005] IEHC 435), the High Court granted a prohibition order to stop a prosecution concerning events which took place in 1966. In so finding, the High Court commented:
“Despite the absence of any explanation for the delays already enumerated it is clear that some part at least of this delay was caused by the overwhelming pressure on the, then, inadequate facilities of the legal system. The government had an obligation to “organise [its] legal system so as to enable the courts to comply [with the requirements of Article 6 § 1] ...
... significant improvements have been made in court waiting times through better management and facilities and the systemic delays of that period are now, thankfully, a thing of the past.”
57. On an application for leave to apply for judicial review, the High Court (an on appeal, the Supreme Court) can prohibit a prosecution on the basis of delay considered to constitute a real and serious risk of an unfair trial. This does not exclude the inherent and constitutional duty of the trial court to ensure that there was a fair trial and to stop a trial if matters arose which rendered it unfair (DPP v. O'C [2006] IESC 54).
“Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
“I believe that the balancing exercise referred to by Keane C.J in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”
61. In T.H. v. DPP ([2006] 3 IR 520) the applicant had been charged in 1996 with sexual assault alleged to have occurred in 1995. He was granted leave to seek judicial review as regards a number of issues arising from the prosecution of the case. The High Court dismissed his judicial review proceedings but nevertheless granted a prohibition order on the grounds that the blameworthy delay by the prosecution in conducting the judicial review proceedings had denied the applicant his right to a criminal trial with reasonable expedition. The DPP appealed to the Supreme Court which allowed the appeal finding that, where inordinate delay did not jeopardise the applicant's right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the applicant's right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences. Fennelly J., with whom the other judges of the Supreme Court concurred, stated:
“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court that it does recognise the public interest in prosecuting crime (see Kostovski v Netherlands [1989] 12 EHRR; [Doorson] v Netherlands 22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.
In brief, the decision in Barry v Ireland adds nothing to the applicant's claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding.”
62. The later case of J.B. v. DPP ([2006] IESC 66) concerned the accused's application for an order prohibiting his criminal trial (on numerous charges of sexual assaults on his nieces between 1971 and 1987) on the basis of delay in the institution and prosecution of the charges. He was only partially successful before the High Court and he unsuccessfully appealed to the Supreme Court. Having reviewed the pre-conditions for an order of prohibition and noted that there “may be other remedies”, Judge Denham noted the above-quoted reference of Fennelly J. (in T.H. v. DPP) to Barry v. Ireland and, notably, the sum of money awarded in just satisfaction. Hardiman J. also stated that:
“I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.”
63. In Devoy v. DPP ([2008] IESC 13) the accused alleged prosecutorial delay in pursuing firearms and criminal damage charges against him. The High Court (in 2006) granted the prohibition order and the Supreme Court (delivering its judgment in the month following the judgment of the Supreme Court in the present case) allowed the DPP's appeal.
Kearns J. recalled and summarised the principles governing prosecutorial delay in Irish law (laid down in the above-cited cases of P.M. v. Malone and P.M. v. DPP) as follows:
“(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant's constitutional entitlement to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in [the above cited case of P.M. v. Malone and P.M. v. DPP] are demonstrated.
(d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition.
...
When applying the test, the court must, however, keep certain considerations in mind. On the one hand, the court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since the European Convention on Human Rights Act 2003 gave effect in this jurisdiction to the provisions of the Convention, including the right under Article 6 to a trial with reasonable expedition. This right must be given real effect.
In the context of prohibition this is not to say that an Irish court must readily or too easily resort to prohibition, whatever about other remedies, when vindicating rights under Article 38.1. Under our jurisprudence, ..., prohibition is a remedy to be granted only in exceptional circumstances. The Court does not adopt a punitive or disciplinary role in this context. Further, any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when exercising this jurisdiction. It must analyse the causes for delay with great care, weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay. In this context not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry by the court under P.M. v. DPP or Barker v. Wingo. In my view an applicant should ordinarily adduce and place before the court some evidence of what is the norm in terms of time taken for the particular proceedings or the identified process or processes within it which are the subject matter of complaint. This is information which is readily available from the Courts Service with regard to various forms of proceedings.”
Denham J began her judgment noting that the case, raising issues of delay in prosecuting criminal offences, was one of a number of cases which had been decided in the High Court (2006) at a time when the jurisprudence was being clarified by the Supreme Court. Finding that the High Court had not applied the correct test as regards prosecutorial delay, Denham J referred to the restatement of the law in P.M. v. DPP (cited above):
“This test requires that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the Court, this step was not taken by the High Court. To prohibit a trial, in addition to the finding of blameworthy prosecutorial delay one or more of the interests protected by the right to an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief. The bar of the test is high because this is a very significant relief - an order prohibiting the public prosecutor from prosecuting an accused.
In this case the second step required by the test was not taken. Indeed the learned trial judge stated that the applicant did not complain of any specific prejudice, and that he did not complain that his right to a fair trial had been impaired by the delay.”
E. Judicial Immunity
64. In Kemmy v. Ireland and the Attorney General ([2009] IEHC 178) the Court of Criminal Appeal set aside the applicant's conviction for rape and sexual assault on the grounds that the manner in which his trial had been conducted rendered his trial unfair. A retrial was not ordered. However, by that date the accused had served his sentence and had been released. Not being entitled to damages under section 9 of the Criminal Procedure Act 1993 (his conviction was not quashed on the grounds of a miscarriage of justice), he took proceedings against the State claiming essentially damages for a breach of his constitutional right to a fair trial. In dismissing the application, the High Court found that the State could not be vicariously liable for errors which a judge may commit in the administration of justice nor could a plaintiff sue the State on other grounds as regards the failure by the trial judge to ensure a fair trial. In addition, the High Court opined that, in any event, the immunity conferred by law on the judiciary also applied for the benefit of the State when an attempt was made to render the State liable for the wrongs of a judge. The High Court stated:
“I am of the view that many of the reasons which support personal judicial immunity – the promotion of judicial independence, the desirability of finality in litigation, the existence of an appeal and other remedies as well as the public interest – can also support the argument for State immunity in cases such as those before this Court. Indeed it is my view that not to extend the immunity to the State in the present circumstances would represent an indirect and collateral assault on judicial immunity itself.
To make the State liable in such a situation would indirectly inhibit the judge in the exercise of his judicial functions and this, in turn, would undermine his independence as guaranteed by the Constitution. It would introduce an unrelated and collateral consideration into the judge's thinking which could prevent him from determining the issue in a free unfettered manner. It might, for example, encourage the other organs of government to monitor the conduct of the judges in this regard, thereby resulting in “a chilling effect”.
The fundamental reason for supporting this conclusion, however, is that when the judge is exercising judicial authority he is acting in an independent manner and not only is he not a servant of the State in these circumstances, he is not even acting on behalf of the State. He is not doing the State's business. He is acting at the behest of the people and his mission is to administer justice. ...
... The plaintiff's case might be advanced to another stage by arguing that the above line of reasoning, which recognises personal immunity for judges and State immunity for the majority of wrongs committed by judges in the administration of justice, does not apply when the constitutional rights of the individual are at stake. I cannot agree. If one were to accept that line of argument one would have to acknowledge that the immunity given to judges personally would also have to yield in such situations. ...
In my view, the acceptance of personal immunity for the Judiciary must logically extend to the State when sued directly for judicial error even when a fundamental right is asserted. That this immunity is not specially recognised in the Constitution, is no impediment, since the State immunity in these circumstances is a corollary of the personal immunity conferred on the judges and the State immunity can be inferred from the personal immunity long since recognised by our courts, though not explicitly acknowledged in the Constitution.”
F. Legal Aid
1. The Attorney General's Scheme
2. Civil Legal Aid
III THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (“THE VENICE COMMISSION”)
70. During the preparation of its “Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”[1], the Venice Commission provided a questionnaire to Contracting States. The questions as well as the responses of the Irish Government, in so far as relevant, are set out below[2]:
“4. Is any statistical data available about the extent of this problem in your country? If so, please provide it in English or French.
The Courts Service is responsible for the management of courts. Average waiting times in each court for 2005 are as set out below. Provision is made to accord early hearing dates to urgent and emergency matters. The average times are as follows:
Supreme Court 14 months from lodgement of a certificate of readiness to hearing date (earlier hearing dates are allocated by the court for urgent cases).
...
Judicial Review (excluding asylum) 15 months (cases taking less than 2 hours will be dealt with sooner). ...”
“5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what - ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French.
Criminal
In the criminal context an accused can take Judicial Review proceedings seeking an order for prohibition against the prosecution on the ground of delay. This application is to be made before the High Court by an accused and must be made 'promptly' [Connolly v DPP 15th March 2003, HC, Finlay Geoghegan J.]. The Court has an inherent jurisdiction to prohibit a prosecution where there is unreasonable delay.
Civil
In the civil context defendants may seek an order for dismissal for want of prosecution in circumstances where there has been delay on the part of the Plaintiff. This application is made to the courts.
In O'Donoghue v Legal Aid Board [21st December 2004, High Court, Kelly J.] the High Court held that the applicant in family proceedings could obtain a declaration of breach of rights under Article 40.1.3 and be awarded damages for delay in the State providing her with legal aid. This case was not appealed to the Supreme Court.
Under the [2003 Act] an applicant may apply to the High Court for damages if an organ of State has not fulfilled its obligations under the Convention. Under that legislation the courts are excluded from the definition of organ of State but delay by the DPP or other State agents or agencies might give rise to this remedy.
Under the [2002 Act] section 46, if judgment has not been delivered within a prescribed period the Courts Service will list the matter before the relevant judge and at that time the Judge must fix a date by which time judgment will be delivered.
According to a procedure initiated in 1996 any litigant who has a complaint in relation to delay must address it formally to the President of the High Court. However, the [ECHR] in [O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004] found that this did not constitute an adequate remedy.
The Courts themselves employ a system of case management and judges seized of a case will set deadlines by which time the parties are required to have submitted or served documents. Legislation, including the Statute of Limitations 1957, stipulates the period in which applicants must take proceedings, before they become 'statute barred'.”
“7. Is there a cost (ex. fixed fee ) for the use of this remedy?
Generally, costs follow the event of the trial i.e. they are awarded to the winning party. However, awards may be made to a particular party in relation to specific interlocutory proceedings.”
“10. What are the available forms of redress:
- acknowledgement of the violation YES
- pecuniary compensation
o material damage YES
o non-material damage YES
- measures to speed up the proceedings, if they are
still pending YES
- possible reduction of sentence in criminal cases NO
- other (specify what)
In criminal proceedings if Article 38.1 is held to have been breached because of delay, an order of prohibition will be granted directing that the prosecution be restrained. Similarly, in a civil action if a Defendant successfully argues that Article 40.1.3 has been violated by reason of delay the claim will be dismissed for want of prosecution. In a judgment in the High Court a Plaintiff in a civil matter complain successfully about delay and declaration of breach of rights and damages were awarded. In the case of PP v DPP [2000] 1 IR 403] it was held that, although a breach of constitutional rights in the context of criminal proceedings had not been made out, any further delay would not be tolerated and the courts should not permit it to occur.
In criminal proceedings if an accused has been in custody pending trial, the period spent in custody will be set off against a sentence imposed.
11. Are these forms of redress cumulative or alternative?
Generally, proceedings will be restrained where unacceptable delay has been shown to exist. A declaration of breach of rights has been accompanied by an award of damages in a civil case.
12. If pecuniary compensation is available, according to what criteria? Are these criteria the same as, or linked with, those applied by the European Court of Human Rights? Is there a maximum amount of compensation to be awarded?
In O'Donoghue v Legal Aid Board damages were calculated with regard to the loss suffered by the applicant ...and stress and upset caused.
13. If measures can be taken to speed up the proceedings in question, is there a link between these measures and the general case-management of the relevant courts? Is the taking of these measures co-ordinated at a central or higher level? On the basis of what criteria and what factual information concerning the court in question (workload, number of judges, nature of cases pending, specific problems etc.) does the competent authority order such measures?
No”
“18. Is there any statistical data available on the use of this remedy? If so, please provide them in English/French.
Not applicable.
19. What is the general assessment of this remedy?
Not applicable
20. Has this remedy had an impact on the number of cases possibly pending before the European Court of Human Rights? Please provide any available statistics in this connection.
Not applicable
21. Has this remedy been assessed by the European Court of Human Rights in respect of Articles 13 or 35 ECHR? If so, please provide reference to the relevant case-law.
The remedy available before this development was considered by the European Court of Human Rights in the cases of [Barry v Ireland, cited above, Doran v. Ireland, no. 50389/99, ECHR 2003‑X (extracts); O'Reilly v. Ireland, cited above; and McMullen v. Ireland, no. 42297/98, 29 July 2004]. In each of these decisions Ireland was found to be in breach of the Convention for failure to provide an adequate remedy for delay.”
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
A. Article 6 § 1 (reasonable time) alone and in conjunction with Article 13 of the Convention
72. Articles 6 and 13, in so far as relevant, read as follows:
6(1). “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
13. “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
B. Article 6 § 3(d) of the Convention
C. Article 8 of the Convention
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
A. The Government's submissions
85. The Opinion stated that the constitutional right to trial with reasonable expedition was a recognised part of the right to trial in due course of law guaranteed by Article 38(1) of the Irish Constitution[3]. While certain criminal prosecutions had been stayed on the basis of this constitutional right, damages did not appear to have been previously sought or granted for a breach of that right. Indeed, “reasonable expedition” was the most litigated area of constitutional law in the late 1990s, the cases often concerning late allegations of sexual assault. Virtually every such case concerned an application for a prohibition of prosecution and apparently no claim for damages for a breach of the right to reasonable expedition was referred to in any judgment. However, this was probably explained by the fact that the threshold for granting leave to seek a prohibition order on judicial review was low (an arguable case) and generally a stay on the criminal proceedings would be accorded pending a final decision on prohibition. An accused was clearly more interested in stopping a prosecution than in damages[4] and/or did not wish to jeopardise a request for a prohibition order with an alternative claim for damages.
However, it was “highly probable” (the Opinion also assessed this as “almost certain”) that an accused could sue successfully for damages for such a breach and this was despite the comment of Kearns J., in the Supreme Court in the second prohibition action, that any such entitlement would require careful consideration by the Supreme Court. To support this view, the Opinion relied on “relatively developed jurisprudence” (notably the generally applicable Meskill doctrine) which established the principle of compensation for a breach of a constitutional right and the right to seek damages for such a breach when no other effective or sufficient remedy existed[5]. The Opinion went on to refer in detail to cases where damages had been awarded for a breach of different constitutional rights[6]. This principle was borne out by the case of O'Donoghue v. Legal Aid Board[7], the closest parallel found to the present case: a delay in granting a legal aid certificate for 25 months when the plaintiff manifestly qualified for it was found to amount to a breach of the plaintiff's constitutional right of access to court and to fair procedures so that she had a right to recover damages for demonstrated loss.
The Opinion underlined the substantive difference, noted by the High and Supreme Courts in the present case[8], between the prohibition of a trial, which required the balancing of the right to reasonable expedition and fairness against a public interest in prosecuting crime, and the less complex issues before this Court under the “reasonable time” aspect of Article 6 § 1 which involved an award of damages for culpable delay. The Opinion stated that the courts would apply the principles governing awards of pecuniary and non-pecuniary damages in tort to an award of damages. In McDonnell v. Ireland[9] the Supreme Court treated, for the purposes of the Statute of Limitations, an action for a breach of constitutional rights in the same way as an action in tort. Accordingly, much of the adjectival law governing tort actions applied to constitutional actions for damages. While there was some authority to the effect that a breach of a constitutional right could be actionable per se, without proof of loss[10], in the majority of cases the courts would compensate as in a tort action on the basis of demonstrated pecuniary and non-pecuniary loss. Exceptionally, awards of punitive or exemplary damages might be made[11].
B. The applicant's submissions
100. There was no precedent at all for such action. He accepted that there was a constitutional right to reasonable expedition and damages were awarded for a breach of certain constitutional rights but in the years since the Byrne v. Ireland and Meskill v. CIE cases (cited above), no one had ever been awarded damages in his situation. In the many recent domestic prohibition actions, damages had never been suggested as an alternative remedy. To the applicant's knowledge, the State had never pleaded, in the alternative in prohibition proceedings, that damages were available for prejudicial delay not warranting a prohibition order or that damages would be a lesser alternative to prohibition in cases where there was prejudice or special hardship. Moreover, he had made an alternative claim before the Supreme Court in his second prohibition action (“for any further or other relief as to this Honourable Court deems ... just”). However, the first declaration was not responded to by the Supreme Court and his claims of delay in violation of the constitutional and Convention right were rejected. Accordingly, despite the fact that delay was a major issue before the Irish courts and despite the “no right without remedy” concept espoused in the Opinion, no initiatives were taken and no official response was offered, by the DPP or the courts, of the nature now canvassed by the State. Indeed, the Senior Counsel who drafted the Opinion had never canvassed the idea of a damages remedy on behalf of a client even in one of his most recent relevant cases (Sparrow ν Minister for Agriculture, Fisheries and Food & Another ([2010] IESC 6). The Opinion was not supported by the practitioners involved in the relevant field.
C. The Court's assessment
1. Relevant principles as regards Articles 13 and 35 § 1
The scope of a Contracting Party's obligations under Article 13 varies depending on the nature of the complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law (for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). The term “effective” means that the remedy must be adequate and accessible (Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-VII).
An effective remedy for delay in criminal proceedings must, inter alia, operate without excessive delay and provide an adequate level of compensation (Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 195 and 204-207, ECHR 2006‑V; and Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008). Article 13 also allows a State to choose between a remedy which can expedite pending proceedings or an post facto remedy in damages for delay that has already occurred. While the former is preferred as it is preventative of delay, a compensatory remedy may be regarded as effective when the proceedings have already been excessively long and a preventative remedy did not exist (Kudła v. Poland [GC], cited above, § 158; Mifsud v. France, cited above, and Scordino v. Italy (no. 1), [GC], cited above, § 187).
2. Application to the present case
(a) Preliminary remarks
However, Articles 13 and 35 § 1, which have a close affinity with each other, give direct expression to the subsidiary character of the Court's work (see Kudła v. Poland [GC], cited above, § 152; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 63, ECHR 2009‑... (extracts)). It follows that less than full application of the guarantees of Article 13 would undermine the operation of the subsidiary character of the Court in the Convention system and, more generally, weaken the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention (Kudła v. Poland [GC], cited above, § 155). Accordingly, less than full supervision of the existence and operation of domestic remedies would undermine and render illusory these guarantees of Article 13 and the Convention is intended to guarantee rights that are practical and effective and not theoretical or illusory (Scordino v. Italy (no. 1) [GC], cited above, § 192). Consequently, and contrary to the Government's submission, the principle of subsidiarity does not mean renouncing supervision of domestic remedies (Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001‑VIII; and Riccardi Pizzati v. Italy [GC], no. 62361/00, § 82, 29 March 2006).
114. Accordingly, the question to be determined by the Court in the present case is whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court's case-law (see Scordino v. Italy (no.1), cited above, § 191; Riccardi Pizzati v. Italy [GC], cited above; and Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009‑...). In the context of Article 13, the Court's role is to determine whether, in the light of the parties' submissions, the proposed remedies constituted effective remedies which were available to the applicant in theory and in practice, that is to say, that they were accessible, capable of providing redress and offered reasonable prospects of success (see, among other authorities, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Apostol v. Georgia, no. 40765/02, § 35, ECHR 2006‑XIV).
(b) Damages for a breach of the constitutional right to trial with reasonable expedition.
According to the Opinion, the constitutional right to a trial with reasonable expedition was recognised as early as 1986 (State (O'Connell) v. Fawsitt, cited above) and the right to damages for breach of a constitutional right was founded on the cases of State (Quinn) v. Ryan and Meskill v. CIE, the latter being decided in 1973. It is undisputed that no accused has ever requested damages for a breach of the constitutional right to reasonable expedition in criminal proceedings, either in a separate action or as alternative relief to a prohibition order. The proposed remedy has therefore been available in theory for almost 25 years but has never been invoked and recent judicial dicta (paragraphs 38, 41 and 62 above) would indicate that the availability of this remedy remains an open question.
The above-described situation is to be distinguished from the time which is accorded by this Court's jurisprudence to allow a new and specifically adopted remedy for delay to be tested (see the evolution of domestic remedies reflected in Gama da Costa v. Portugal, no. 12659/87, decision of 5 March 1990, Decisions and Reports (DR) 65, p. 136, Paulino Tomás v. Portugal, cited above, and Martins Castro and Alves Correia de Castro v. Portugal, cited above; in Vernillo v. France and Mifsud v. France, both cited above; in Lutz v. France (no. 1), no. 48215/99, 26 March 2002 and Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, 21 October 2003; and in Berlin v. Luxembourg (dec.), no. 44978/98, 7 May 2002 and Leandro Da Silva v. Luxembourg, cited above. See, more recently, Grzinčič v. Slovenia, no. 26867/02, § 108, ECHR 2007‑V (extracts); and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII). Moreover, in the recent case of Vinčić and Others v. Serbia (nos. 44698/06, et seq. § 51, 1 December 2009), the constitutional remedy (including a specific constitutional law provision allowing direct access to the Serbian Constitutional Court for human rights complaints) was not considered effective until after the latter court had heard applications and delivered and published judgments on their merits.
Since this Court holds a State responsible under the “reasonable time” aspect of Article 6 § 1 for delay by judges in delivering their judgments (see, for example, Eckle v. Germany, 15 July 1982, § 84, Series A no. 51; O'Reilly v Ireland, no. 21624/93, Commission's report of 22 February 1995, §§ 65-66; Somjee v. the United Kingdom, no. 42116/98, § 72, 15 October 2002; Obasa v. the United Kingdom, no. 50034/99, § 34, 16 January 2003; O'Reilly and Others v. Ireland, no. 54725/00, § 33, 29 July 2004; and McMullen v. Ireland, no. 42297/98, § 39, 29 July 2004), a remedy which does not apply to this form of delay cannot be considered an effective one within the meaning of Article 13 of the Convention. The Court is not therefore required to examine whether the benefit of that domestic judicial immunity would extend to other forms of judicial delay or, as the applicant argued, to delay caused by other officers of the court including the prosecution.
In this respect, the Court considers, contrary to the High Court in the Kemmy case, that there is a relevant distinction to be drawn between the personal immunity from suit of judges (also at issue in the Ernst and Others v. Belgium case relied on by the Government) and the liability of the State to compensate an individual for blameworthy delay in criminal proceedings attributable in whole or in part to judges.
In this respect, the Court notes that the Opinion considered the O'Donoghue v. the Legal Aid Board case to be the closest parallel to the present. It concerned a complaint about a 25-month delay in according a legal aid certificate: the case contesting this delay began in 1999 (based on the case number assigned by the Central Office of the High Court) and ended with a judgment of the High Court in 2004. The Court has also had regard to the information supplied by the Government to the Venice Commission in the above-described study on average relevant waiting times before Irish courts as of 2005: the delays were noted as 15 months before the High Court on (non-asylum) judicial review (although it is not clear from when this period began to run) and 14 months before the Supreme Court from the date of filing of the Certificate of Readiness, to which periods of time would have to be added the period of execution of any damages awarded. Moreover, the parties agreed before the Grand Chamber that the average waiting time before the Supreme Court on appeal is, at present, in the region of 32-34 months. The Report of the Working Group on a Court of Appeal (May 2009) outlined the average “waiting times” for a hearing before the Supreme Court as 22 months in 2006, 26 months in 2007 and 30 months in 2008. As to requesting damages as alternative relief in the prohibition actions, the second action may have taken less than 2 years but the first lasted approximately 6 years and six months. Given existing delays, notably before the Supreme Court, the Court could not base an assessment of effectiveness of the proposed remedy on an assumption that all actions for damages for delay could be accorded priority.
Accordingly, there is no evidence that the proposed remedy would have been speedier than ordinary civil suits and it thus could have lasted for several years through two jurisdictions (Ilić v. Serbia, no. 30132/04, 9 October 2007). Such a lapse of time would not be reconcilable with the requirement that the remedy for delay (even before a constitutional court) be sufficiently swift (see Belinger v. Slovenia, cited above; Lukenda v. Slovenia, no. 23032/02, § 65, ECHR 2005‑X; and, later, Vidas v. Croatia, no. 40383/04, 3 July 2008).
The Court notes that the proposed action would be subject to the normal rules of litigation concerning legal representation, court fees and legal costs. While legal representation is not obligatory, as noted above, the remedy would be legally and procedurally complex. A judicial review action would not be covered by criminal legal aid, an action in damages would not appear to be covered by the Attorney General's ex gratia scheme and the applicant would have to obtain the agreement of the Civil Legal Aid Board that the remedy had merit before legal aid would be granted. The action would, at least initially, be novel and uncertain (paragraphs 117-121): should an applicant be unsuccessful, there was a risk of a costs order against him or her; and, even if damages were pursued as an alternative claim in the prohibition action, there would be separate costs attributable to the damages claim (notably, those of the Attorney General who would be a respondent) and thus any costs' exposure could be high. The Court considers that the Government have not demonstrated that, in such circumstances, an applicant would not be unduly hampered in taking an action for damages for a breach of the constitutional right to reasonable expedition (Cocchiarella v. Italy [GC], no. 64886/01, § 102, ECHR 2006‑V).
(c) The three remaining remedies relied on by the Government
125. As to an application for damages under the 2003 Act, the Government accepted that this could be invoked only if the constitutional action for damages were unsuccessful. It would therefore appear that the most efficient manner of so applying under the 2003 Act would be as an alternative claim in any constitutional action: however, the latter action risks being lengthy (paragraph 123 above). In addition, the courts are excluded from the definition of “organs of the State” by Article 1 of the 2003 Act: any delay attributable to “the courts” would not therefore be actionable under that Act. Moreover, the 2003 Act did not enter into force until 31 December 2003 by which time the applicant's proceedings had been in being for almost 6 years and the 2003 Act is not retroactive (Dublin City Council v Fennell [2005] IESC 33).
(d) Conclusion
III ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. The applicant's observations
In the first place, it was reasonable to await full disclosure and expert advice before issuing the first prohibition action. In particular, he needed to establish the state of the evidence against him before contemplating the first prohibition action. The Book of Evidence was delivered in July 1998 but, due to the lack of statutory regulation of disclosure in criminal proceedings, he had to pursue further disclosure. During that process he was informed that the original fingerprint evidence had been lost and additional disclosure was made in March 1999. It was only after this disclosure process that he could brief an expert to obtain advice as regards the loss of the original fingerprint evidence. He obtained that advice in October 1999 following which he applied for a prohibition order (1 November 1999).
Secondly, he could not be held responsible for delay during the first prohibition action. Following the Statement of Opposition (5 April 2000), he was entitled to seek discovery to usefully pursue those proceedings and he made his discovery request within 6 weeks. Since the State did not make voluntary discovery, he had to issue a motion. He did so within 2 months. Having obtained a return date (13 October 2000) both parties agreed to adjourn it to the first date thereafter (12 January 2001). Neither party appeared on that date due to a misunderstanding. The applicant then pursued the normal procedure and invited the prosecution, by several letters in 2001, to consent to re-entering the motion and, apart from one, his letters were unanswered. He was then obliged to issue a further motion to re-enter the proceedings in October 2001. It was only on the first return date (16 November 2001) that the prosecution agreed to make discovery, which was completed by affidavit on 8 February 2002.
B. The Government's submissions
The applicant could have initiated the first prohibition action earlier. He had two grounds for that action. The first ground was the lapse of time between the relevant offences and his arrest but he could have initiated his action on this issue after the service of the Book of Evidence in July 1998: apart from responding to his disclosure requests, no additional evidence was served thereafter. His second ground was the loss of the original fingerprint evidence but that loss was disclosed on 15 January 1999. Even if he had to wait until March 1999 (when further disclosure was made) to issue the action, there was no reason to wait until November 1999 which was the eve of his trial. The expert opinion he had obtained was not relied upon by him.
The applicant was also responsible for delays during those actions and, in particular, he did not apply sufficient diligence to his discovery application in the first action. Indeed, discovery appears to have been no more than a device to delay because the material discovered was never considered. The applicant issued a letter seeking discovery six months after leave to apply for judicial review was obtained (on 15 May 2000). While neither party appeared on the hearing date (12 January 2001) due to a misunderstanding on both sides, the applicant then delayed 9 months before re-issuing the application for discovery (in October 2001). In the meantime, he wrote one letter seeking the prosecution's consent to re-entering the matter (May 2001). Discovery was completed by the prosecution in February 2002 and the prosecution, not the applicant, then re-entered the prohibition action. The applicant brought his cross-appeal in the first prohibition action at the last moment (2 February 2006). The Supreme Court commented that the applicant could have, but did not, expedite the first prohibition action. The delay of the High Court judge in approving his judgment did not, of itself, constitute a violation of the reasonable time requirement and otherwise there was no delay in the first prohibition action attributable to the authorities.
C. The Court's assessment
144. The Court considers the applicant to have been “substantially affected” on his arrest on 5 January 1998 when he accepts he was first notified by the police of the charges against him concerning the kidnapping (for example, Reinhardt and Slimane-Kaďd v. France, 31 March 1998, §§ 91-93, Reports of Judgments and Decisions 1998‑II; Etcheveste and Bidart v. France, nos. 44797/98 and 44798/98, 21 March 2002, § 80; and Malkov v. Estonia, no. 31407/07, § 57, 4 February 2010). While police and prosecution activity prior to that date could, in principle, have some relevance to the fairness aspect of Article 6 § 1, the dismissal of the charges means that he can no longer claim to be a victim of any violation of his right to a fair trial (paragraph 78 above).
The Court considers that it was reasonable for the applicant to have pursued the first prohibition action on the basis that the delay since the impugned events and the loss of the original fingerprint evidence rendered his trial unfair. Indeed, he was successful in obtaining a prohibition order from the High Court on the latter basis. It was also not unreasonable to issue those proceedings once satisfied as to the fullness of disclosure in the criminal proceedings (March 1999), during which process he was informed of the loss of the original fingerprint evidence, and once he had obtained advice as regards the feasibility of defending the charges with only the forensic report on that original evidence (contrary to the Government's submission, that advice was referred to in the domestic proceedings, see paragraph 30 above). However, the applicant has not convincingly explained why obtaining that expert advice took until October 1999.
It was also reasonable that the applicant would request a prohibition order as regards the delay after his arrest (namely, after 1 November 1999 and during his first prohibition action). When he initiated the second prohibition action in 2006, it was almost 8 years and six months after his arrest and almost 22 years and six months following the impugned events. The second prohibition action was based on the claim that the impugned delay also breached his right to a trial with reasonable expedition. The case law of the Supreme Court on the right to reasonable expedition and on the consequences of its breach as regards obtaining a prohibition order was at that point developing (see, for example, the judgments of the Supreme Court in the second prohibition action referred to at paragraphs 36, 39 and 43 above and that of Denham J. in the Devoy case at paragraph 63 above). Furthermore, he had a prohibition order in his favour from the High Court until March 2006 (when the Supreme Court ruled against him) and it was not therefore unreasonable for him to begin his second prohibition action once he was apprised of the rejection of the first one.
The Court does not therefore agree with the Government that the prohibition actions were so ill-conceived, and their initiation so unreasonably delayed, that the duration of those actions, should be attributed to the applicant.
(i) While the prosecution requested (on 11 March 2002) the re-entry of the first prohibition action, the first hearing date proposed was March 2003 and, following an adjournment due to the unavailability of a judge, it was not heard by the High Court until 11 July 2003 (16 months)
(ii) An ex tempore judgment was delivered by the High Court on 18 July 2003. While the prosecution quickly appealed (August 2003), it could not certify the appeal as ready until the transcript of the judgment was approved by the High Court judge which was done on 17 January 2005 (17 months).
(iii) The appeal was quickly certified as ready (January 2005) but the Supreme Court hearing was not held until 16 February 2006 (13 months). There is no evidence that the applicant's cross-appeal delayed in any way that Supreme Court hearing.
(iv) The High Court refused the second prohibition action in November 2006. The applicant appealed in February 2007 but the Supreme Court did not hear the appeal until January 2008 (11 months).
As to this submission of the Government as well as their similar suggestions (not raised as separate remedies) that the applicant should have attempted to expedite the approval of the High Court transcript and the proceedings generally, the Court recalls that, in the Mitchell and Holloway case, the Court found that, even if a system allowed a party to apply to expedite proceedings, this did not exempt the courts from ensuring that the reasonable time requirement of Article 6 was complied with, “as the duty to administer justice expeditiously is incumbent in the first place on the relevant authorities”. In Bullen and Soneji v. the United Kingdom (no. 3383/06, §§ 65-66, 8 January 2009) the Court found that even the applicant's agreement to a later hearing date did not remove the State's obligation to ensure expedition. Indeed, the Court has found that, even a principle of domestic law, that the parties to civil proceedings were required to take the initiative to progress the proceedings, did not dispense the State from the requirement to organise its system to deal with cases within a reasonable period of time. If a State allows proceedings to continue beyond a “reasonable time” without doing anything to advance them, it will be responsible for the resultant delay (Foley v. the United Kingdom, no. 39197/98, § 40, 22 October 2002; and Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 23, 29 July 2003). These principles apply a fortiori where the State is itself a party to the proceedings and responsible for their prosecution (Crowther v. the United Kingdom, no. 53741/00, § 29, 1 February 2005..).
Accordingly, the Court considers that the existence of any possibility or right on the part of the applicant to take steps to expedite did not dispense the State from ensuring that the proceedings progressed reasonably quickly. Indeed, the Government themselves recalled that domestic courts have an inherent jurisdiction to ensure that justice is done and have a constitutional duty to protect constitutional rights, including the right to reasonable expedition.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
157. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
B. Costs and expenses
166. As to the costs of the prohibition actions and whether or not those actions “sought redress” for the violations established, the Court notes that the applicant failed to apply for costs for legal representation for those actions under the Attorney General's scheme. He accepts that prohibition actions were covered by that scheme and it is noted that costs are payable in accordance with the Criminal Justice (Legal Aid) Regulations 1965-2000. However, since he did not apply, he has not substantiated that costs would have been refused or that the costs payable would have been so low as to require a supplementary award from this Court. The applicant did not suggest that any costs order in those actions in favour of the State has been pursued against him so that it is unnecessary to make any provision under Article 41 in that respect (Steel and Morris v. the United Kingdom (no. 68416/01, § 105, ECHR 2005‑II). The Court does not therefore find it demonstrated that the domestic costs and expenses claimed were necessarily incurred and it makes no award in this respect.
C. Default interest
FOR THESE REASONS, THE COURT
1. Decides by a majority to join to the merits of the complaints under Article 13 the Government's objection as to the exhaustion of domestic remedies;
2. Declares by a majority the complaints concerning the excessive length of the proceedings and the lack of a remedy in that respect admissible and the remainder of the application inadmissible;
3. Holds by twelve votes to five that there has been a violation of Article 13 of the Convention and, consequently, dismisses the Government's objection as to the exhaustion of domestic remedies;
4. Holds by twelve votes to five that there has been a violation of Article 6 § 1 of the Convention;
5. Holds by twelve votes to five,
(a) that the respondent State is to pay the applicant, within three months, EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable;
(b) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; and
(c) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 September 2010.
Vincent Berger Christos
Rozakis
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of judges Gyulumyan, Ziemele, Bianku and Power;
(b) dissenting opinion of Judge Lopez-Guerra.
C.L.R.
V.B.
JOINT DISSENTING OPINION OF JUDGES GYULUMYAN, ZIEMELE, BIANKU AND POWER
1. We do not share the majority's view in this case. We make no observation on the merits of this claim. In our view, this case is inadmissible for non-exhaustion of domestic remedies and it brings into sharp focus the fundamental importance of the principle of subsidiarity enshrined in Article 35 § 1 of the Convention.
2. It is not contested by the parties that there is, in Ireland, a long established Constitutional right to trial within a reasonable time.[12] Equally, it is not contested that there is a considerable body of domestic case law that demonstrates that damages for a breach of a Constitutional right are readily available (see § 85 of the Judgment).[13] In such circumstances, we find the majority's approach to be inconsistent with what the Court has previously and repeatedly held, namely, that “as regards legal systems which provide constitutional protection for fundamental human rights, it is incumbent on the aggrieved individual to test the extent of that protection” (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006; Vinčić and Others v. Serbia, nos. 44698/06, et seq., § 51, 1 December 2009; and D. v. Ireland (dec.), no. 26499/02, § 85, 28 June 2006).
3. The applicant does not deny that he has never asked the Irish courts to compensate him by awarding damages for the alleged breach of his Constitutional and Convention right to trial within a reasonable time. The only 'remedy' he claimed, domestically, was 'a right to no trial'. When he failed on two occasions to obtain a prohibition order, he then came before the Strasbourg Court with an altogether different and far less radical claim – a claim for damages – even though, in Ireland, damages are a readily available and widely recognised means of redress for an established breach of Constitutional rights. In effect, the applicant has brought one claim before the national courts (prohibition of trial) and a different claim before Strasbourg (damages). The consistent approach of this Court as articulated and reiterated by the Grand Chamber in Selmouni v. France ([GC], no. 25803/94, § 74, ECHR 1999‑V), has been that the complaint which an applicant intends to make subsequently to this Court must first have been made to the appropriate domestic body.
4. In Kudła v. Poland ([GC], no. 30210/96, § 152, ECHR 2000‑XI) the Court confirmed that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, “is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court”. Relying on Kudła the majority begins its analysis by concluding that “it follows” that less than a full application of the guarantees of Article 13 would undermine the operation of the subsidiary character of the Court (see § 112 of the Judgment). The starting point of its analysis appears to be, with respect, a conclusion concerning the less than full application of the guarantees of Article 13. How can this Court assess whether there has been 'a less than full application' of such guarantees if the national courts have not been asked by the applicant to apply them? What the majority regards as “the question to be determined” in this case is “whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention” (see §114); but no opportunity for the interpretation and application of the domestic law of remedies for 'length of proceedings' has arisen because the applicant sought only one outcome – prohibition of trial. Domestic courts are not obliged to order prohibition of trial each time a complaint concerning 'unreasonable time' is established. Far less radical remedies, such as, damages are acceptable. Had the majority started its analysis with the relevant test, namely, whether the applicant had done everything that could reasonably be expected of him to exhaust domestic remedies (see Aksoy v. Turkey, 18 December 1996, § 54, Reports of Judgments and Decisions 1996-VI; Isayeva v. Russia, no. 57950/00, § 153, 24 February 2005; and D. v Ireland (cited above, § 84)) it would, inevitably, have concluded that the domestic courts were never given an opportunity of ensuring “a full application of the guarantees of Article 13”.
5. Our fundamental disagreement with the approach of the majority is based on its failure to respect and give meaningful effect to the core Convention principle of subsidiarity. Subsidiarity requires that before this Court proceeds to award damages for any violation of the Convention, the national authorities “must be given an opportunity to put matters right through their own legal system” (see T. v. the United Kingdom [GC], no. 24724/94, § 55, 16 December 1999). For this Court to deprive the Irish courts of the opportunity to determine the applicant's claim for damages is not just failing to respect subsidiarity; it is assuming the functions of a first instance court. Allowing the national courts to be the first to hear and determine a claim is a fundamental aspect of the principle that the Convention's 'machinery of protection' is subsidiary to theirs in the safeguarding of human rights (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). Not allowing them so to do, is what is liable to weaken the workings of the “machinery' of human rights protection (see Kudła § 155) not least because a claim for damages brought before this Court is likely to take much longer.
6. Where non-exhaustion is raised, the onus is upon a respondent State to show that a remedy is available, domestically. The State's submission on the 'damages' remedy is, admittedly, more detailed in this case than in Barry v Ireland (no. 18273/04, 15 December 2005). Nevertheless, having raised non-exhaustion, the only standard to be met is that of a “reasonable prospect of success”– not certainty of a favourable outcome (see Pellegriti v. Italy (dec.), no. 77363/01, 26 May 2005). There is before this Court independent expert opinion from a senior practitioner and academic to the effect that a Constitutional remedy is not just probably but “almost certainly” available in Ireland. The applicant has produced no evidence at all to contradict or cast doubt upon this opinion. In a case against the United Kingdom, it was held that even an unfavourable counsel's opinion on the prospect of success was insufficient to justify a failure to exhaust domestic remedies (see K., F. and P. v. the United Kingdom (dec.), no. 10789/84, 11 October 1984). Why that same obligation to exhaust was not required in this case, where the expert opinion is highly favourable, is difficult to fathom.
7. Having regard to the expert opinion evidence adduced and to the domestic courts' readiness to award damages for an established breach of Constitutional rights we are satisfied that the test of 'a reasonable prospect of success' has been met. The mere fact that damages for an alleged breach of one specific aspect (reasonable time) of one Constitutional right (fair trial) have not been claimed by any litigant is not sufficient to displace the fact that damages are available, domestically, for breaches of Constitutional rights, including, in circumstances where they have not previously been awarded for want of being sought.[14]
8. The rationale upon which the majority considers that an action in damages for breach of Constitutional rights is not effective is based, essentially, upon three grounds:- (i) uncertainty; (ii) 'judicial immunity'; and (iii) 'duration' and 'costs'.
The 'Uncertainty' Argument
9. The majority finds that an action in damages for the alleged breach of the applicant's Constitutional/Convention right is 'uncertain' (see § 117 of the Judgment). Its approach, in this case, stands not only in contrast to the weight of the domestic courts' jurisprudence but also in contradiction of this Court's own case law. The potential and importance of the Constitutional remedy in a common law system has already been accepted by this Court. In D. v Ireland (cited above) the unanimous Court was unable to dismiss as ineffective the Constitutional remedy which it considered was available “in principle” to the applicant. It took the view that, having regard to the potential and importance of that remedy in a common law system, it was reasonable to expect the applicant in D. (who had been pregnant and was, allegedly, obliged to travel abroad for an abortion) to have taken certain preliminary steps before the domestic courts towards resolving the disputed uncertainties. By contrast, the Court in this case relieves the applicant of the obligation to have taken any such preliminary steps even though the minimum that might have been required of him was the inclusion into his prohibition pleadings of an alternative claim in damages. This, the majority finds, he could not reasonably have been expected to do. If, in reality, there is any doubt about the availability of damages for the alleged breach of the applicant's right to an expeditious trial then, in our view and in line with this Court's own case law, any such doubt should have been resolved by him, domestically, before asking this Court to rule upon the issue.
10. In support of its stance on the “uncertainty” of the Constitutional remedy, the majority refers to answers recorded in a questionnaire compiled by the Venice Commission in preparation of its Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings (see § 70 of the Judgment). It strikes us as rather odd that the Judgment fails, entirely, to have any regard to the findings in the actual Report itself. In the light of its own investigations, the Venice Commission concluded that both preventative and compensatory damages are available in Ireland. Further, it found that, in respect of the administrative proceedings, both acceleratory and compensatory remedies are available.[15] The Commission's findings would indicate strongly that the test for “effectiveness” as set out in the settled case law of this Court has been met. “Remedies available to a litigant at domestic level for raising a complaint about length of proceedings are “effective” ... if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred (Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006‑V; Sürmeli v. Germany [GC], no. 75529/01, § 65, ECHR 2006‑VII; and Kudła v. Poland, cited above, §§ 157 to 159).
11. Perhaps the majority's principal ground for 'uncertainty' of the remedy is the fact that no domestic case law has been opened to show that the Constitutional remedy is available in respect of a specific complaint concerning 'length of proceedings'. It cites a number of cases in which this Court has found a Constitutional remedy not to be effective until after 'delay applications' had been heard and judgments on their merits delivered (see § 117). All of the cases cited are distinguishable on their facts and none of them involved a legal system operating within the common law. Thus, their authoritative force for this case is weak. For example, unlike the applicants in Šoć v. Croatia (no. 47863/99, 9 May 2003 cited at § 120 of the judgment[16]) or in Vinčić and Others v. Serbia (cited above) the applicant in this case was not obliged to wait until a “new” Constitutional remedy had been introduced and its effectiveness 'tested' by reference to decided cases after a certain period of time. In contrast to the newly introduced remedies in the judgments cited by the majority, there is nothing 'new' about the Constitutional remedy in Ireland and there was nothing to prevent the applicant from testing its effectiveness in respect of his complaint at any time.
12. The majority purports to recognise the importance of allowing remedies to develop within a common law system with a written Constitution yet it censures the respondent State for not having “a specifically introduced remedy for delay” (see § 120 of the Judgment), presumably, such as, one that might be required of a State operating within a civil law system. If there is nothing to prevent applicants from seeking damages from the domestic courts now, we fail to see why a specifically introduced remedy permitting them so to do should be required. Such a move towards the 'micro management' of a domestic legal system operating within the common law is a worrying erosion of the fundamental principle of subsidiarity and represents a development that diminishes rather than enhances the protection of human rights.
13. The reality is that case law cannot be adduced to show that a remedy is effective if cases testing its effectiveness have never been taken.[17] The domestic courts went to some length to point out that they could not deal with a claim that was not before them. Fennelly J. specifically referred to the fact that the applicant was not seeking damages and that, as with other applicants in a similar position, he had sought only the remedy of prohibition of trial. Given the important public policy considerations arising in an application for the prohibition of a trial on serious criminal charges, it goes without saying that the relevant principles and the appropriate legal test are not the same as those in issue when considering a claim for damages. An entirely different case would have been presented to the domestic courts had the applicant sought damages either instead of or as an alternative to prohibition. Fennelly J. stressed that it was not possible for the Supreme Court, having an appellate function only, to pronounce in the abstract on whether damages would be available if they were claimed. He explained, expressly, that “any such claim would have to be made in the High Court in the first instance”. Such a claim would be determined, per Kearns J. (as he then was) following “full and careful consideration in an appropriate case”. It is difficult to envisage what more can be expected of domestic courts other than to give careful consideration to a claim for damages for breach of the right to an expeditious trial if and when such a claim is made. Short of inducing claimants to sue for 'reasonable time' violations, it is difficult to see how cases can be adduced in respect of claims that have not been made.
14. The majority now acknowledges, implicitly, that this Court's interpretation of comments made by the Supreme Court in Barry v. Ireland was not correct (see §§ 23, 53 in Barry and § 110 of this Judgment). It accepts that the comments were not relevant to the assessment of the effectiveness of the constitutional remedy in damages in that they were made in the context of a prohibition action, the legal test and relevant principles of which, it now accepts, are “substantively different” from an action for damages for culpable delay. That acceptance is welcome but the Court's misinterpretation of the comments in question would appear to have been rather central to its findings in that case (see § 53 of Barry).
The 'Judicial Immunity' Argument
15. The majority's second ground for rejecting the 'damages' remedy is the State's failure to demonstrate that damages could be obtained in respect of delay in the handing down of a judgment. It relies, exclusively, upon selected extracts from a High Court decision[18] in which that Court found against the plaintiff who had sued the State for an alleged a violation of his right to a fair trial. Having found that there had been no breach of the right to a fair trial because the 'unfairness' had been remedied on appeal, the Judge observed that the immunity which the law confers on the judiciary in such situations applies also to the State when an attempt is made to make it directly liable for the wrong of the judge in such circumstances. Not to extend the immunity to the State “in the present circumstances” would represent an indirect and collateral assault on judicial immunity.
16. The majority found that “contrary” to the High Court in the Kemmy case there is a relevant distinction to be drawn between personal immunity from suit of judges and the liability of the State to compensate for delay attributable in whole or in part to judges (see § 121 of the Judgment). Firstly, it should be clarified that the case in question had nothing to do with the issue of State liability for judicial delay. McMahon J. expressly stated that there had been no allegation of delay and that “absent this” the State could not have been faulted. Furthermore, a careful reading of the Judgment illustrates that the 'distinction' emphasised by the majority was not, in fact, lost on the High Court Judge. The case before him concerned the question of State immunity for alleged unfairness of trial caused by a judicial error. It was not about State liability for delays in the legal system. In general, such delays tend to occur where a State fails to erect the proper “scaffolding” to support the efficient administration of justice. Such scaffolding may be vulnerable if a State fails, for example, to provide a sufficient number of judges or to have in place an efficient case management system. In Kemmy the High Court Judge specifically distinguished between liability for judicial error (as in the case before him) and liability for what one might call the system's failure. The extracts cited by the majority (at § 64 of the Judgment) indicate the omission of certain paragraphs. In the paragraphs omitted, the trial judge had expressly stated that “the State may be liable for failing to erect the appropriate scaffolding” thus leaving open the question for determination in an appropriate case.
17. Since the Irish courts have never been asked to determine a claim for damages for unreasonable length of proceedings, they have never had an occasion to develop domestic law on State liability for delays, including, delays in the delivery of judgments. Nevertheless, from a case which had nothing to do with this issue, the majority has extrapolated that respect for the principle of judicial immunity – a fundamental aspect of judicial independence – would stand as an obstacle in a claim for damages against the State for unreasonable delay within the legal system. In so doing, it is interfering with the natural evolution of domestic law in that it is one step ahead of the domestic judges who cannot determine such an issue until it arises in proceedings before them. The underlying philosophy of the doctrine of exhaustion is to ensure that domestic courts undertake the primary obligation of protecting Convention rights. This Court's function is limited to supervising the domestic law's compliance with the Convention's requirements. That allocation of responsibilities must be respected if the machinery of human rights protection is to function effectively. The proper balance between the national and international legal orders is disturbed when this Court anticipates and assumes what the domestic courts might do in cases that have not yet come before them and when it fails to direct applicants back to the domestic courts to test any remedy that offers 'a reasonable prospect of success'.
The 'Duration' and 'Costs' Argument
18. Speculation as to the 'duration' and 'costs' of a claim in damages has led the majority to conclude that the applicant was not obliged to exhaust such a remedy. These are rather novel grounds for waiving the obligation to exhaust. As regards duration, it is only where the remedial procedure itself has been found to take too long (10 years in Vaney v. France, no. 53946/00, 30 November 2004) that the Court has exempted the individual from the obligation to exhaust. There has been no such finding in this case because there has been no attempt to exhaust. Where an applicant has never tested a remedy for which there is, clearly, 'a reasonable prospect of success', it is inappropriate for this Court to relieve him of the obligation so to do on no more than a speculative assumption that it might take too long.
19. Reliance upon the 'costs' argument is also rather new. An appeal within any legal system almost always costs money but that has never led the Court to waive the obligation to exhaust for applicants who fail to appeal nor to regard an appeal as ineffective for the purposes of Article 13. The Court has already held that lack of financial means does not absolve an applicant from making some attempt to take legal proceedings (Cyprus v. Turkey [GC], no. 25781/94, §§ 352 and 353, ECHR 2001‑IV). In D. v Ireland (cited above, § 100) the Court expressly rejected such an argument which had been raised by the applicant and it found that “the 'costs' risk does not, as a matter of principle, constitute a reason to classify a constitutional remedy as generally ineffective”.
20. In our view, this Judgment is both inconsistent with settled case law on exhaustion and unconvincing in its reasoning on the ineffectiveness of the 'damages' remedy in Irish law. Furthermore, it stands as an invitation to all who fail to have their criminal trials prohibited in Ireland to simply by-pass the domestic courts and to come directly to Strasbourg for damages even though such applicants could readily include, within their domestic pleadings, an additional and/or an alternative claim for compensation in the event that prohibition is refused. It appears impervious to the express statements of the Supreme Court that careful consideration would be given to a claim for damages for breach of the right to an expeditious trial if and when such a claim is made.
DISSENTING OPINION OF JUDGE LÓPEZ GUERRA
I disagree with the majority's opinion. In my view, it does not reflect the meaning and importance of the principle of subsidiarity in the procedures before this Court.
General respect for human rights can be guaranteed only if they are effectively protected at the internal State level. In that regard, the role of the national authorities, and especially that of the domestic courts, is decisive and justifies the provision in Article 35 § 1 of the Convention to the effect that the Court “will only deal with the matter after all domestic remedies have been exhausted”. Any tendency of this Court to substitute itself for the national courts in this role will have undesirable effects, negatively affecting the national courts' position as the common and natural defenders of human rights.
Certainly, one of the rights enshrined in Article 6 § 1 of the Convention is the right to trial without undue delay, and the Court has often stressed that effective remedies must be provided against excessively lengthy proceedings. These remedies can either be preventive (to avoid the undue prolongation of proceedings) or compensatory (to seek redress, if possible, for the consequences of undue delay).
In this case I have strong doubts as to whether the applicant exhausted all available compensatory remedies. He did indeed avail himself of the preventive remedies at his disposal (asking twice for a prohibition of the trial, based on the excessive length of the proceedings). However, he did not apply to an Irish court for any compensatory remedy by which he might have been awarded damages for the undue length of the criminal proceedings. In that regard, the Irish courts did not have (or were not given) the opportunity to render a judgment in this matter concerning possible financial compensation for the undue delay.
The present judgment deals with the question whether a reasonably available remedy existed in Irish law allowing for the possible award of compensation, and it reached the conclusion that such a remedy was not available. I am not convinced that such a remedy did not (or does not) exist. The applicant relies on the Court's Barry judgment to conclude that there was no effective domestic compensatory remedy for the alleged unreasonable length of the criminal proceedings. Whilst I believe that upholding the Court's own precedents is a guarantee of legal certainty, as well as a measure to ensure consistency in the Court's task of protecting the human rights set forth in the Convention, in my view the present case has certain peculiarities that distinguish it from Barry.
I do not doubt that the principle iura novit curia is also applicable, in general terms, to the proceedings before this Court. But, given the peculiar nature of such proceedings, which concern matters affecting all areas of law in a wide array of legal orders, the parties play an important role in providing information on the law in force in the internal legal order which may be relevant in their cases. Such collaboration aids the Court in its
decisions by providing it with better knowledge and understanding of the particularities of each system.
In the present case, I believe that the relevance of the information provided should have been taken into account. In Barry, as the Court recognises in the present judgment (paragraph 120), the Irish Government's submissions concerning the existence of a constitutional remedy for damages were “relatively brief”. By contrast, in the present case, the Government representation has extensively discharged its onus to justify its affirmation of the existence of such a remedy, accordingly providing a full-fledged Opinion by a renowned specialist on Irish constitutional law. In my view, the reasoning and arguments contained in that Opinion provide sufficient evidence of the existence of a constitutional action for damages in the Irish legal order, a remedy which should have been used by the applicant before turning to this Court.
The information presented by the Government, backed by extensive citations of Irish case-law, demonstrates that: (1) Article 38, paragraph 1, of the Irish Constitution, which establishes that “[n]o person shall be tried on any criminal charge save in due course of law”, likewise protects the right to an early trial; (2) it is a general principle of Irish law that the rights recognised in the Irish Constitution are protected against violation by legal actions; (3) according to the Opinion, in the Irish constitutional order there is now relatively well-developed case-law dealing with awards of damages for breaches of constitutional rights; (4) as a consequence, “it is plain therefore, that such an accused can sue the State (or its agents) for damages where his constitutional right to an early trial has been violated” (see paragraph 29 of the Opinion of Senior Counsel).
In my opinion, the argument that to date there has been no previous case in which damages were awarded for a violation of the right to an early trial does not mean that there is no remedy available for damages in this case. The Irish Government explained that the redress usually sought for this type of violation was the prohibition of trial, not damages. In fact no judgment denying damages for the violation of that right was provided as evidence of the impossibility of seeking damages by way of redress for undue delay.
In sum, it is my view that, on this occasion, the Irish Government have provided enough legal and case-law information for it to be reasonably concluded that a remedy for this situation exists in the Irish legal order – a remedy which the applicant should have used before bringing his claim to this Court. As a result, I would have preferred the Court to apply Article 35 § 1 of the Convention and declare the application inadmissible for non-exhaustion of domestic remedies. In addition, from the allegations of the parties (paragraph 73) it appears that the six-year limitation period in which to file a claim for damages for an alleged breach of constitutional rights had not yet expired, so this possibility still remained open to the applicant.
[1] CDL-AD(2006)036(rev).
[2] CDL(2006)026 entitled “Replies to the Questionnaire on the Study on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”.
[3] The State (O’Connel) v. Fawsitt [1986] IR 263.
[4] As noted by Fennelly J. in TH v. DPP, cited above, and by Fennelly J. in the Supreme Court (in the second prohibition action) in the present case.
[5] The State (Quinn) v. Ryan [1965] IR 70 (O’Dalaigh C.J., “the court’s powers were as ample as the defence of the Constitution requires”); Byrne v. Ireland [1972] IR 241 (Walsh J., “Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce those must be deemed to be also available …”); and Meskill v. CIE [1973] IR 121 (Walsh J., “the constitutional right carried within, its own right to a remedy or for the enforcement of it”).
[6] Inter alia, Kearney v. Ireland [1986] IR 116 (prisoner’s right to communicate); Kennedy v. Ireland [1987] IR 587 (journalist’s right to privacy); Conway v. Irish National Teacher’s Association [1991] 2IR 305 (a right to free primary education); Healy v. Minister for Defence, High Court, 7 July 1994, unreported (right to fair (promotions) procedures); Walsh v. Ireland, Supreme Court 30 November 1994, unreported (right to liberty and good name); Sinnott v. Minister for Education [2001] 2IR 545 (right to adequate primary education); Gulyas v. Minister for Justice, Equality and Law Reform [2001] 3IR 216 (right to fair (immigration) procedures); and Redmond v Minister for the Environment (No. 2) [2006] 3IR 1 (electoral rights).
[7] O’Donoghue v. Legal Aid Board, cited above.
[8] see also T.H. v. DPP, cited above.
[9] [1998] 1IR 134.
[10] Redmond v Minister for the Environment (No. 2), cited above, (a nominal sum of EUR 130 since there was no actual proof of loss).
[11] Conway v. Irish National Teacher’s Association, cited above, (a range of exemplary damages were awarded to children who missed school from IRŁ1500-IRŁ15.000).
[12] See Article 38.1 of the Constitution.
[13] See, in particular, the list of cases cited at footnote 6 of the Judgment.
[14] Kennedy v. Ireland [1987] IR 587; Sinnott v. Minister for Education [2001] 2IR 545; Gulyas v. Minister for Justice, Equality and Law Reform [2001] 3IR 216; O’Donoghue v. Legal Aid Board [2004] IEHC 413; Gray v. Minister for Justice [2007] IEHC 52; and Herrity v. Associated Newspapers [Ireland] Ltd [2008] IEHC 249
[15] See paragraph 62 of the Venice Commission’s Report where Ireland is listed as one the countries where both general and specific remedies are available. Its finding in this regard is not limited to civil proceedings. See also paragraph 72 of the Report where Ireland is identified as one of the countries where acceleratory remedies co-exist with compensatory ones for administrative proceedings. The ‘proceedings’ in respect of which the majority found delays that breached the ‘reasonable time’ requirement were, in fact, administrative proceedings (judicial review) which the applicant instituted in an attempt to prohibit his trial.
[16] Paroutis v Cyprus, no. 20435/02, 19 January 2006 is also cited in § 120 as authority for the majority’s position “even in the context of a common law inspired system with a written constitution’. This case is readily distinguishable in many respects not least by the absence of settled jurisprudence therein showing an established entitlement to damages against the State for breach of Constitutional rights. By contrast, such an entitlement has been amply demonstrated in the instant case and is supported by independent expert opinion which is unchallenged by alternative expert evidence.
[17] To the extent that any domestic case law is available, it is entirely against the majority’s finding that an action in damages would not be ‘effective’. The High Court in Kelly v Legal Aid Board referred specifically to this Court’s jurisprudence on ‘reasonable time’ when awarding the plaintiff damages for a two year delay in obtaining legal aid in order to institute proceedings. To the extent that Kelly is the only case where damages for delay were claimed and awarded, there is no reason to believe that such a remedy would not be effective if sought by other litigants.
[18] Kemmy v. Ireland and the Attorney General [2009] IEHC 178.