European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 61138/08
by Patrick Joseph ENRIGHT
against Ireland

The European Court of Human Rights (Fifth Section), sitting on
21 June 2011 as a Committee composed of:

Mark Villiger, President,
Elisabet Fura,
Ann Power, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 24 November 2008,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

PROCEDURE

The applicant, Mr Patrick Joseph Enright, is an Irish national who was born in 1960 and lives in County Kerry. He was represented before the Court by Mr P. Cullinane, a barrister practising in Cork. The Irish Government (“the Government”) were represented by their Agent, Mr P, White, of the Department of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The initial criminal investigation and prosecution

On June 1994 the applicant resigned from his employment with a company (“the Company”). He considered that the Company had reneged on an agreement to provide a redundancy package to him so he engaged in a scheme to obtain the money he considered rightfully due to him. In 1994 he began to practice as a solicitor.

In October 1994 he was interviewed by the police at his office about an allegation of fraud concerning the Company. In August 1996 he was brought to the District Court and charged with ten counts of forgery. On
27 January 1997 he pleaded not guilty to the charges and elected for trial on indictment. In February 1997 the Book of Evidence was served on the applicant. Applications were subsequently made, by the applicant and the prosecution, to procure additional evidence and witnesses.

2. The prohibition action

On 17 June 1997 the High Court granted the applicant leave to apply for judicial review for an order prohibiting further prosecution of the charges. It also stayed the criminal prosecution pending the prohibition action. The prohibition action was then adjourned pending the applicant’s requests for third party and further discovery and it was re-entered by the High Court on 13 October 2003. On 27 January 2005 the High Court began the hearing in the prohibition action and completed it in May 2005. Judgment dismissing the action was delivered on 21 December 2005. In May 2008 the Supreme Court heard the applicant’s appeal and orally confirmed the judgment of the High Court. Its written judgment to that effect was delivered in July 2008.

3. Resumed criminal proceedings

On 22 October 2008 the State re-entered the criminal charges. On that date, as well as on six later dates, the District Court judge assigned to the case could not be present so the case was adjourned. On 7 December 2009 the assigned judge heard argument on a motion to dismiss on grounds of delay and reserved judgment to 21 December 2009. On the latter date, judgment was not delivered and the case was adjourned to 11 January 2010. On the latter date, prosecution Counsel did not appear and the matter was adjourned to 1 February 2010 when the applicant’s motion was dismissed.

Depositions were scheduled for 26 February 2010, on which date the matter was sent for hearing to the Circuit Criminal Court on 2 March 2010. On 2 March 2010 the case was adjourned to 21 May 2010. On that date and later on 4 October 2010 the case was adjourned since counsel for the prosecution was unavailable. By letter dated 4 February 2011 the Director of Public Prosecutions confirmed that it was intended to proceed with the prosecution of the applicant.

COMPLAINTS

The applicant complained under Articles 6, alone and in conjunction with Article 13 of the Convention, about the length of the criminal proceedings against him and about the lack of an effective remedy in that regard (McFarlane v. Ireland [GC], no. 31333/06, ECHR 2010 ...).

He also invoked Article 6 §§ 1 and 3, Articles 13 and 14 as well as Article 1 of Protocol 1 to the Convention about the orders for costs made against him in the prohibition action and about the failure to provide him with legal aid for that action.

THE LAW

On 18 January 2011 the Court received the following declaration signed by the applicant’s legal representative:

“I, Padraig Cullinane, BL, note that the Government of Ireland are prepared to pay ex gratia to Mr Patrick Joseph Enright, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 9,500 euros, inclusive of pecuniary and non-pecuniary damages as well as of costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Ireland in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”

On 9 February 2011 the Court received the following declaration from the Government:

“I, Peter White, Co-Agent of the Government of Ireland, declare that the Government of Ireland offer to pay, ex gratia to Mr Patrick Joseph Enright, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 9,500 euros, inclusive of pecuniary and non-pecuniary damages as well as of costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously,

Decides to strike the application out of its list of cases.

Stephen Phillips Mark Villiger
Deputy Registrar President