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You are here: BAILII >> Databases >> European Court of Human Rights >> GILLIGAN v. IRELAND - 55276/17 (Judgment : Right to a fair trial : Fifth Section Committee) [2021] ECHR 231 (18 March 2021)
URL: http://www.bailii.org/eu/cases/ECHR/2021/231.html
Cite as: [2021] ECHR 231, ECLI:CE:ECHR:2021:0318JUD005527617, CE:ECHR:2021:0318JUD005527617
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FIFTH SECTION
CASE OF GILLIGAN v. IRELAND
(Application no. 55276/17)
JUDGMENT
STRASBOURG
18 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of Gilligan v. Ireland,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Síofra O’Leary,
Lətif Hüseynov, judges,
and Martina Keller, Deputy Section Registrar,
the application (no. 55276/17) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Irish nationals, John Gilligan, Geraldine Gilligan, Treacy Gilligan and Darren Gilligan (“the applicants”), on 31 July 2017;
the decision to give notice to the Irish Government (“the Government”) of the complaint concerning length of proceedings and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 18 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns proceedings brought against the applicants under the Proceeds of Crime Act, 1996 (“the Act”), the length of which, the applicants claim, did not comply with the requirements of Article 6 § 1 of the Convention.
THE FACTS
2. The applicants were born in 1952, 1956, 1974 and 1975 respectively and indicated that they live in Dublin (first, third and fourth applicants) and Kildare (second applicant). They were represented before the Court by Stokoe Partnership Solicitors, a law firm in London.
3. The Government were represented by their Agent, Mr P. White of the Department of Foreign Affairs.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants are members of the same family. The first and second applicants are the parents of the third and fourth applicants.
6. On 21 November 1996, a senior police officer, acting on behalf of the Criminal Assets Bureau (“CAB”), initiated the procedures under the Act for freezing, and ultimately confiscating, various properties of the applicants by applying to the High Court for an interim order under Section 2 of the Act. The interim order was made on that same date, valid for a period of 21 days, prohibiting the applicants from disposing or otherwise dealing with the properties in question (their houses, some land, several cars). This was followed shortly after by an application under Section 3 of the Act, which provides for “interlocutory” orders that freeze the properties in question for a period of seven years (see under the relevant legal framework below). On 5 December 1996, the High Court granted what would be described later in the proceedings as a “temporary” order under Section 3. Just the second applicant was present at the hearing. On that date, the first applicant was in custody at Belmarsh prison, London, having been arrested in October of that year at Heathrow airport carrying approximately £300,000, leading to charges under the United Kingdom’s Drug Trafficking Act. He was later extradited to Ireland where he was convicted of drugs offences in March 2001, for which he received a sentence of, ultimately, 20 years. He was released from prison in October 2013.
7. The temporary order of 5 December 1996 was valid for a period of two weeks. On 19 December 1996, the matter was heard again by the High Court. Three of the applicants were represented by counsel at the hearing. The High Court made another order in relation to the applicants’ property, indicating that the issue stood “adjourned generally with liberty to re-enter”. It was later in dispute whether this order should be taken as the operative order in the case, or the order that was later issued by the High Court in the same proceedings on 16 July 1997.
8. Section 6 of the Act makes provision for the right of a person whose property has been frozen under section 2 or section 3 to apply to the court for payment out of legal expenses incurred in defending the proceedings under the Act. The applicants made such an application, which was granted on 7 February 1997 by the President of the High Court. It was specified however that if it was later considered to be unnecessary for the discharge of the applicants’ legal expenses, the order could be revoked at that point in time. The applicants objected to this limitation, and their appeal on this point was decided by the Supreme Court on 13 May 1997. In an unreported judgment (the case having been heard in camera, as provided for under Section 8 of the Act), the Supreme Court quashed the order and remitted the issue to the President of the High Court. The Supreme Court clarified in its judgment that while a freezing order was termed an “interlocutory order” in Section 3 of the Act, it was clear from the context that it was not the same as the interlocutory order typically used in civil proceedings, i.e. a provisional measure applied in anticipation of the trial of the merits of the case at a plenary hearing before the High Court. Rather, under the Act it was a measure that continued in full force and effect until, in accordance with Section 4, after a period of seven years a disposal order could be sought transferring the property in question to the State. It was also noted in the judgment that the applicants had the intention to argue, at the appropriate stage, that in light of the evidence tendered by the authorities the order under Section 3 had not been validly made.
9. In parallel to the above, the first applicant also brought proceedings challenging the constitutionality of the Act on various grounds. The case was heard in the High Court on 18-21 March 1997, and a lengthy judgment was given on 26 June 1997. All of the arguments raised were dismissed. The applicant appealed that ruling to the Supreme Court.
10. On 16 July 1997, another Section 3 order was issued by the High Court in respect of the applicants’ properties. Throughout the subsequent proceedings, the applicants argued that this order was made on the common understanding, shared by the judge, counsel and the parties, that it was not a final ruling on the issue whether the properties in question constituted the proceeds of crime, but instead merely a procedural step leading to a full trial of the question of how the applicants had acquired their property. However, in a ruling dated 13 April 2005, the Supreme Court later stated that the order made on 16 July 1997 was a final order under Section 3 of the Act.
11. The question of covering the applicants’ legal costs in the proceedings, which had been remitted to the High Court (see paragraph 8 above), was dealt with by an order made under Section 6 of the Act on 31 July 1997.
12. In the years following the making of the final, or operative, Section 3 order (see paragraph 10 above), the applicants sought by various means and on various grounds to have it overturned, or to have the proceedings struck out. One line of argument was that the correct form of procedure had not been followed and thus the order had not been validly made. In this connection, it was noted by the office of the Chief State Solicitor in correspondence with the second applicant’s solicitor in October 1997 that the appropriate form of relief at that stage would be to apply to the High Court to vary or discharge the freezing order in accordance with Section 3(3) of the Act. In February 1998 the second applicant sought an order from the High Court for the formal reason described above. Her application was refused the following year, on 16 July 1999. She appealed that ruling to the Supreme Court, which rejected the appeal on 13 April 2005. A similar application to strike the proceedings out was made by the first applicant in February 2000. It was considered by the High Court the following month, on 24 March. The court adjourned the matter as the first applicant’s constitutional appeal was still pending before the Supreme Court. The matter was not pursued any further.
13. The constitutional appeal was dismissed in all respects by the Supreme Court on 18 October 2001. In its judgment, the court reaffirmed that a person affected by an order made under Section 3 of the Act could apply at any time to have it modified or discharged under Section 3(3).
14. A second line of argument advanced by the applicants over time was that the proceedings surrounding the making of the freezing order in July 1997 had been unfair, since the shared understanding at that point in time was that it was a truly interlocutory order, to be followed shortly afterwards by a hearing of the issue, at which they would enjoy all of the usual procedural rights and safeguards. This was why they had not sought to resist the order at the time it was made. Moreover, they argued that the proceedings had not been fair since they had not had legal representation at that precise point in time. This had not been granted until two weeks later. This argument was initially raised by the first applicant in a notice of motion dated 30 September 2002. It appears that he did not pursue this particular objection at the time, leading to the striking out of the motion on 24 March 2003.
15. In December 2004, CAB applied under Section 4 of the Act for a disposal order in relation to the applicants’ properties, the seven-year period since the making of the freezing order having elapsed by that time. On 8 February 2005, the second applicant sought to have the Section 4 application dismissed, arguing that it had not been sought in the correct form. Her request was denied by the High Court on 30 January 2006. However, the Section 4 proceedings did not progress until after the applicants’ continuing challenges to the Section 3 order were dealt with. The disposal order was eventually made in December 2011.
16. As regards the relief available under Section 3(3) of the Act, it appears that the third and fourth applicants applied on 11 February 2000 for a partial discharge of the orders affecting their respective houses. It seems that these motions were not dealt with at that time. The second applicant issued a motion on 27 July 2005 requesting the High Court to discharge or vary the freezing order on her property, in accordance with Section 3(3). Her argument was that as she had not had a real or meaningful opportunity to contest the making of that order in 1997, it should now be discharged since it caused her “injustice” within the meaning of that provision (see under Relevant domestic law below, paragraph 37). The first applicant issued a similar motion in February 2006, relying in addition on the Constitution and the Convention.
17. The matter was considered by the High Court. In an oral judgment given on 21 February 2006, the court ruled that as the order made in 1997 was a final order, it was not within the competence of the High Court to now inquire into the manner in which that order had been made. Accordingly, the applicants could not seek to have that order varied or discharged on the basis of alleged procedural unfairness. The applicants appealed. Their appeal was dismissed by the Supreme Court on 19 December 2008 (see paragraph 20 below).
18. In the meantime, various other steps were taken by the applicants. In July 2006 the first and third applicants sought to have the proceedings struck out for the procedural reason mentioned above (at paragraph 12). This application was rejected by the High Court on 20 November 2006. The second applicant applied to the Supreme Court in February 2008 for an extension of the time-limit for appealing against the 1997 order; this motion was ruled on along with the appeal. In July 2008 the first applicant sought an order striking out the proceedings as an abuse of process. The High Court refused this relief in an order made later that same month. The first applicant appealed.
19. For their part, the authorities applied in July 2007 to the High Court for the appointment of a receiver in respect of the applicants’ properties, in accordance with Section 7 of the Act. The issue was the subject of a five-day hearing in October 2007, and the order for receivership was made on 4 February 2008. The first applicant commenced an appeal against this order but did not pursue it. The authorities also requested the Supreme Court, in July 2008, to group the various appeals and to issue case management directions.
20. In its judgment of 19 December 2008, the Supreme Court upheld the ruling of the High Court regarding the impossibility of challenging a freezing order on grounds of alleged procedural injustice. In a lengthy judgment, the Supreme Court analysed the structure of the Act, under which there were several possibilities to resist or to challenge a freezing order. This could be done at the time the order was sought (Section 3(1)) or, equally effectively, through a subsequent application under Section 3(3). Yet another possibility was afforded by Section 4, governing the confiscation of the property. The court considered it to have been “absolutely clear” that, as from the date of the first ruling of the Supreme Court in these proceedings (of 13 May 1997), the applicants’ legal advisors should have understood the structure of the Act and the manner in which relief could be properly sought. It described the excuse that the applicants had not understood that the freezing order was to be treated as a final order until the High Court ruling of 21 February 2006 as “clearly false”.
21. As for the request to extend the time-limit to appeal the 1997 order, this was rejected. The Supreme Court considered that the criteria set out in its case-law for extending the time-limit were not satisfied. Moreover, the time elapsed since then (more than eleven years) was too long, and in any event the court noted that there was still the possibility of using the procedure under Section 3(3) to seek to discharge the freezing order.
22. The Supreme Court then considered the applicants’ challenge to the plaintiff’s application under Section 4 for a disposal order (appealing the ruling of the High Court of 30 January 2006). It could not see the “slightest injustice” about the way in which the proceedings had been brought and dismissed the appeal with “no hesitation”.
23. On dates in February, March and April 2009 the applicants took proceedings under Section 3(3) of the Act. There was detailed management of the case by the High Court. On 9 June 2010 the judge made a number of rulings on the manner in which the hearing was to take place, notably that evidence in relation to the four applicants would be heard together, and that the parties were at liberty to cross-examine every witness who had given evidence during the proceedings. The applicants were also permitted to call whatever witnesses they wished in support of their application. Hearings were held in July and October 2010. The High Court gave its ruling on 27 January 2011. The judgment ran to 90 pages and included close examination of the applicants’ evidence and testimony with respect to the origin of the funds used to acquire the properties in question. In relation to the house owned by the third applicant, the court accepted that a portion of the funds did not derive from criminal activity. Otherwise, it found that the applicants had failed to discharge the onus on them to show that the properties in question were not acquired using the proceeds of criminal activity, or that the freezing order was unjust. It examined in detail and rejected the evidence of the first applicant that he had purchased the properties using borrowed funds, profits from dealings in currency exchange and his winnings from gambling. The court was particularly critical of him, describing his evidence as, variously, untruthful, incredible, without foundation and so implausible as to be incapable of belief. It considered that the most probable explanation for the money used to purchase the properties in question was that it derived from large-scale drug trafficking, for which the first applicant was at that time serving a lengthy prison sentence.
24. The first applicant had complained before the court that his ability to present evidence about the source of his money had been greatly impaired by the long delay in getting a substantive hearing in the proceedings. The High Court repeated that it had been open to the applicant to bring proceedings under Section 3(3) at any time following the making of the freezing order in 1997, and noted that this had been specifically drawn to his attention in legal correspondence more than a decade before. However, the first applicant had decided to proceed differently. Given that the evidence relied on by the authorities in seeking to freeze the properties had been set out in affidavits filed at the beginning of the proceedings, the applicants had been aware since then of the nature of the case against them. The judgment states:
“It is in the public interest and the interest of individual litigants that litigation should be conducted expeditiously and with as little delay as possible. In this case the respondents could make an application at any time and it was for them to institute a claim. Claims were not brought until the early months of 2009 and therefore could not have been considered by the Court at any time prior to that date.”
25. The court added that where those concerned by proceedings under the Act delayed in commencing Section 3(3) applications, they could not then seek to rely on such delay.
26. Proceedings continued before the High Court in 2011. In April, the second applicant requested that the judge recuse himself from the case, on the basis that, having dismissed their Section 3(3) applications, his objectivity was open to question in relation to their other objections. This request was rejected in an order of 31 May 2011, which also dismissed several related requests at the same time.
27. In October 2011, there was a hearing in relation to the challenge brought by the first and second applicants against Section 3 on Convention grounds. The High Court dismissed that challenge in a judgment of 20 December 2011. It noted that since the facts of the case pre‑dated the enactment of the European Convention on Human Rights Act 2003, the remedies in that legislation could not be applied retrospectively and thus the claim for relief based on the Convention had to be dismissed. Nevertheless, at the request of all of the parties to the proceedings, the Court considered the various Convention arguments raised. Of relevance to the present case is its consideration of the complaint of delay. It noted that the first applicant had chosen to delay exercising his right to challenge the freezing order and thus could not complain of the length of the proceedings as “the delay was his delay”. It had been within his power to seek the discharge of the freezing order. Thus, no issue of delay could arise such as would give rise to breach of Article 6 of the Convention.
28. The High Court gave a second judgment on the same date, 20 December 2011, which dealt with the authorities’ application under Section 4 of the Act for disposal orders in relation to the applicants’ properties. Since the applicants had already failed to refute the assertion that their properties represented the proceeds of crime, the key issue was whether it would be unjust to transfer their properties to the State. The second, third and fourth applicants argued that it would be, given their individual circumstances. In relation to the second applicant and fourth applicants, the Court noted that they continued to use the property in question as their respective homes. For this reason, it decided to grant a stay of some months on the transfer of ownership of these properties to the State. It also granted a stay in relation to the sale of the house of the third applicant, which was not her home at the time as she was a resident in Spain for many years, and ordered that she receive 20% of the proceeds of sale.
29. The applicants appealed against all three High Court judgments. Their appeal did not concern the court’s assessment of their evidence but went instead to the question of jurisdiction. In essence, they argued that the High Court had lacked jurisdiction to consider their challenge under Section 3(3) of the Act, as no valid freezing order had ever in fact been made due to the absence of a hearing on the matter. As a result, their properties could not be confiscated under Section 4 of the Act. They further argued that the High Court had, without any legal basis, purported to make three freezing orders, referring to the “temporary” orders made on 5 December and 19 December 1996 as well as the order of 16 July 1997. Since the Supreme Court had affirmed in its judgment of 19 December 2008 that the order made in July 1997 was a final, operative order, they asked the Supreme Court to now overturn that judgment (an appeal known in domestic law as a “Greendale” motion).
30. According to the information in the case file, the course of the proceedings involving this new variant of the applicant’s challenge to the validity of the freezing order of July 1997 was as follows.
31. The applicants’ appeal was brought in June 2012. In April 2013 the applicants were ordered to file their books of appeal, under threat of dismissing the proceedings. The applicants maintained that this was in fact due to an administrative error on the part of the registry of the Supreme Court. Several case management meetings were held between July and December 2013, it being the intention of the judge managing the case to have the hearing by a date in 2014. The applicants next filed two motions in relation to their appeal, in May 2014. One sought the appointment of a forensic accountant, the other sought the disclosure of documents held by the relevant authorities. In the event, just the first motion was heard. The other one was adjourned when it emerged that the documents in question had already been supplied at an earlier date to the lawyers representing the applicants at that time.
32. In a judgment of 9 July 2014, the Supreme Court refused the request to appoint a forensic accountant, observing that there had been ample time when the case had been before the High Court for the applicants to obtain and present such evidence, just as the other side had done five years previously in September 2009. To seek leave to obtain such evidence on appeal was tantamount to reopening an issue that could and should have been fully argued before the High Court. It was not possible for a party to be allowed a dry run in the High Court after which they could try to strengthen their case with new evidence.
33. Following this, there were case management hearings at intervals. In December 2014, the Supreme Court set a hearing date for 23 February 2015. Two weeks before this date, the applicants requested a later date for the hearing. The Supreme Court directed that the hearing take place on 27 July 2015. This too had to be adjourned at short notice, in the absence of the relevant submissions by the applicants’ legal representative. In October 2015, the respondent authority sought a new hearing date. The applicants indicated that this should not be earlier than May 2016. The date of 30 May 2016 was fixed, later moved to 7-8 June 2016 at the applicants’ request. The hearing took place on those days.
34. The Supreme Court gave its judgment on the appeals on 1 February 2017, rejecting them. The judgment recounts at length the procedural history of the case covering the multiple attempts by the applicants over the years to challenge the freezing order on assorted grounds through a variety of different or amended proceedings. In considering the application to overturn the previous Supreme Court judgment of 2008, the court recalled that a final judgment will only be set aside in rare and exceptional cases and the circumstances relied on must show that it is necessary to do so either in the interests of constitutional justice or to vindicate or protect a constitutional right. It observed that there was no reason why the applicants could not have raised their challenges to the validity of the freezing order years before. While there may have been tactical reasons for not resisting the application on 16 July 1997, or for appealing the order directly to the Supreme Court (as was possible), a remedy had been continuously available to them under Section 3(3) of the Act. This did not represent any procedural disadvantage for them, compared to the full trial of the issue that they had subsequently sought. The Supreme Court stated:
“... the Gilligans have slept on their rights to challenge the validity of the steps taken by CAB. Those who have a right to challenge the validity of an order made against them should do so promptly by the means provided for such challenge, such as by way of appeal. Failure to do so will preclude someone who might otherwise have a valid basis for challenging an order made against them to raise such issue years later.”
35 . The Government informed the Court that while the above Supreme Court appeal was pending, the applicants brought further proceedings before the High Court, making the argument once again that the freezing of their properties and the intention to confiscate them contravened their property rights under the Constitution and the Convention. The proceedings were commenced in September 2013 and dismissed by a judgment of the High Court of 20 December 2013. The court considered the action to be vexatious and an abuse of process, noting that the central issue had been “litigated and re-litigated over and over again”. The judge stated:
“I do not doubt that the plaintiffs are greatly distressed at what the [CAB] has been seeking to achieve. That they would seek to resist and indeed frustrate CAB in their endeavours is scarcely surprising. In a situation where they believe they have identified a point of major significance, that they would wish to pursue it and would be reluctant to let go of it is entirely to be expected. However, there is a limit to how often and in how many different ways the same point can be argued. There is a limit to how long and how often any drum can be banged. That limit has now been reached, if indeed not exceeded.”
36. According to the applicants, their properties were confiscated by the authorities in June 2017.
RELEVANT LEGAL FRAMEWORK
37. The Proceeds of Crime Act was adopted on 4 August 1996, shortly after the high-profile murder of the prominent investigative journalist Veronica Guerin, well known for her reporting on major Irish criminal figures. In their submissions before the Court, the respondent Government described the Act as an essential element of the Irish legislative framework aimed at fighting crime, particularly organised crime, drug trafficking and money laundering. The power to freeze and then to confiscate property acquired by the proceeds of crime was the State’s response to the increasing ability of major criminals to divert criminal revenue into property. Also in 1996, CAB was established by legislation to strengthen the State’s capacity to combat serious crime.
Section 3 of the Act provides, as relevant:
“(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8 –
(a) that a person is in possession or control of -
(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or
(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and
(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,
the Court shall make an order (‘an interlocutory order’) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person -
(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or
(II) that the value of all the property to which the order would relate is less than £10,000:
Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.
...
(3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order.”
Section 4 of the Act provides, as relevant:
(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to specified property, the Court, on application to it in that behalf by the applicant, may make an order (‘a disposal order’) directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine.
(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of an application under subsection (1) unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.
...
(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.
(5) The Minister may sell or otherwise dispose of any property transferred to him or her under this section, and any proceeds of such a disposition and any moneys transferred to him or her under this section shall be paid into or disposed of for the benefit of the Exchequer by the Minister.
(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give an opportunity to be heard by the Court and to show cause why the order should not be made to any person claiming ownership of any of the property concerned.
(7) The Court, if it considers it appropriate to do so in the interests of justice, on the application of the respondent or, if the whereabouts of the respondent cannot be ascertained, on its own initiative, may adjourn the hearing of an application under subsection (1) for such period not exceeding 2 years as it considers reasonable.
(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.”
38. The 1996 Act was the subject of several rulings by the Supreme Court that clarified the nature of the proceedings under Sections 3 and 4.
In the case F. (McK.) v. FC (Proceeds of Crime), [2001] 4 I.R. 521, the Supreme Court observed:
“Given [the framework of the 1996 Act], it is evident that, in a sense in a practical way, the interlocutory order or the application for an interlocutory order is the trial of the real issue in the case and that obviously renders the proceedings of an unusual nature.”
In the case F. McK v. A.F. (Statement of Claim), [2002] 1 IR 242, it was again affirmed that the order provided for in Section 3 of the Act, despite its name, is in reality the substantive relief provided for by Act. By granting the order, the court shows that it is satisfied that the property in question has been acquired using the proceeds of crime. The remedy is a free-standing one, a final measure, not a temporary one.
In the case Murphy v. M.C., an unreported judgment of 8 March 2004, the appellant argued that the abovementioned (Proceeds of Crime) judgment should be overturned. This was rejected by the Supreme Court, which considered that judgment to have been entirely correct. It again observed that the procedures under the Act differed entirely from the procedures which were always associated with the granting of interlocutory relief by the courts in normal civil litigation between parties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
39. The four applicants complained that the multiple proceedings in which they had been involved had not been concluded within a reasonable time, contrary to Article 6 of the Convention, which provides, as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
40. The Government did not contest the admissibility of the complaint.
41. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
42. The applicants argued that the duration of the domestic proceedings had been excessive, beginning in late 1996 and culminating in the judgment of the Supreme Court in early 2017. Since the issue of legal costs had yet to be addressed at the time of making their submissions, the applicants argued that the proceedings were still ongoing, thus lasting for some 23 years. They asserted that they had not been responsible for any delay at any stage of the proceedings. Instead they blamed the authorities for the manner in which they had conducted the proceedings, arguing that they had been non-cooperative all along, for which reason the applicants had been forced to continuously apply to the courts for relevant procedural steps to be taken, often needing to appeal. While there had been many steps and stages in the proceedings, the applicants considered that the Government had exaggerated this in their submission to the Court. The applicants pointed to several reasons for the duration of the proceedings. They argued that the Irish judicial system was inadequately resourced, causing long delays at High Court and Supreme Court level. They contended that much of the difficulty had arisen from the 1996 Act, which they criticised as being opaque and ambiguous. The courts’ interpretation of the legislation had evolved over time, making it difficult for them to defend their interests in the proceedings. Only in December 2008 did the true legal position emerge with the judgment of the Supreme Court on their appeals. Nevertheless, their case had not been the first case and so it could not be said that it involved genuinely novel issues. Nor had it been particularly complex. The most intricate aspects had been dealt with in the early years of the proceedings. They complained that the duration of the case was detrimental to them since it put them at a disadvantage in terms of gathering and presenting evidence concerning properties acquired many years before. The consequence of this was the confiscation of their homes. They further complained that arrangements for legal aid had been inadequate, and this also contributed to the excessive length of the proceedings.
43. The Government maintained that there had been no breach of Article 6 in this case. They pointed to the plethora of proceedings, applications and appeals by the applicants during the period in question, comprising 7 separate originating proceedings, over 88 separate applications, leading to 14 separate reasoned judgments and 29 appeals. Referring to the history of the case, the Government argued that the time taken to reach the key stage in the process - the freezing order of July 1997 - had in fact been very brief. It had already been clarified by that stage how a defendant could challenge a freezing order, and this had been specifically drawn to the applicants’ attention that same year. Yet the applicants had pursued a different litigation strategy involving a large number of collateral legal challenges to the Act itself and to the way in which it had been applied to them. It had taken the applicants more than eleven years to make correct use of the statutory procedures, in 2009. During this long period, they had retained the right to continue to use their properties and could in fact do so until 2017. There had been no excessive delay attributable to the authorities in the proceedings after 2009. At the level of the High Court, the judge hearing the case had engaged in active case management to prepare the case for hearing on several dates in 2010, leading to three judgments given in 2011. Far from obstructing the applicants, the authorities had facilitated them, for example by agreeing to the examination of arguments based on the Convention as part of the proceedings under Section 3(3) of the Act before the High Court in 2011. When the case was again brought before the Supreme Court, it had become by then an extensive file spanning fourteen years of multiple proceedings of different types. The applicants’ multiple motions and changes of legal representation were a cause of delay, frustrating the Supreme Court’s intention to deal with the case at a relatively early date. On several occasions, hearings had had to be postponed on account of the applicants, linked to their choice of counsel from the United Kingdom whose availability to appear in Dublin was limited.
44. The Government asserted that the applicants had never been handicapped by a lack of legal aid; on the contrary, they had had the benefit of solicitors and counsel for most of the proceedings. Their legal advisers should have been aware from as early as May 1997 of the particular structure of the legislation, and of its various procedural provisions as had been clarified by the Supreme Court in the very early stages of the applicants’ proceedings. As for the capacity of the courts, the Government pointed out that this was not relevant here. There had been few such cases during the period in question (12-15 per year on average), efficiently managed by the judge with responsibility for this case list. Such delays as there had been in this case could not be attributed to the respondent State but were the result of the applicants’ delaying tactics.
2. The Court’s assessment
45. To ascertain whether the duration of the proceedings in which the applicants were involved was unreasonable, the Court must first identify relevant start and end points. It notes that the trigger was in November 1996, when the representative of CAB set the statutory procedure in motion by applying to the High Court for an interim order. Thereafter, different sets of proceedings followed, mainly at the instigation of the applicants, all relating back to that initial step under Section 2 of the Act, culminating in the judgment of the Supreme Court in February 2017. Although the applicants argued that the proceedings had not yet terminated since the question of costs had yet to be resolved, the Court points out that the scope of Article 6, under its civil head, is limited to the determination of the individual’s civil rights and obligations. In this case, the applicants’ civil rights and obligations were finally determined by the judgment given by the Supreme Court on 1 February 2017. Therefore, taking all of the procedures as a whole, their duration was just in excess of twenty years, involving two levels of jurisdiction.
46. However, the Court would underline, on the basis of the information in the file and a careful examination of the different domestic proceedings, that they were not conducted in a straightforward, linear manner, but involved a succession of phases, attended by numerous procedural steps taken mostly by the applicants as they energetically pursued a succession of strategies over many years to thwart the authorities’ attempts to seize their various properties. The Court regards this as a fundamental feature of the proceedings, and will consider it further below.
(a) General principles
47. The Court refers to the statement of the relevant general principles in its recent judgment in the case Keaney v. Ireland, no. 72060/17, §§ 85-91, 30 April 2020.
(b) Application to the present case
(i) Complexity of the case
48. The Court notes that the applicants were among the first individuals to be the subject of proceedings under the legislation, which came into force in August 1996. It can therefore be accepted that the new, indeed novel, procedures under the Act posed a certain challenge at the outset for the courts, for the authorities responsible for enforcing it and for legal practitioners, including the applicants’ legal representatives. In several judgments the Supreme Court pointed to the unusual nature of the procedure for freezing property under the Act, and saw the need to clarify and then to reaffirm that the order contemplated in Section 3 of the Act was a substantive remedy rather than, as its name suggested, a temporary measure (see paragraph 38 above). Nevertheless, it cannot be said that the statutory procedure was so complex as to be the cause of significant delay in the proceedings. Nor is this what happened. As the applicants acknowledged, the key stage in the proceedings - the granting of the interlocutory order freezing their properties - was reached within a matter of months, in July 1997. As argued by the Government, this first stage of the proceedings was indeed very brief.
49. The applicants criticised the legislation itself, which they considered to be unclear, and complained that the interpretation of the legislation by the courts evolved over the course of more than a decade, leaving them uncertain as to how to proceed until the Supreme Court judgment in 2008. The Court notes however the statement in that judgment that the true nature of the procedure under Section 3 had been “absolutely clear” since May 1997, when the Supreme Court had ruled on the applicants’ appeal in relation to their legal costs (see paragraph 8 above), an observation that was reiterated in the Supreme Court judgment in 2017. As recalled in both judgments, the structure of the Act was further clarified by the Supreme Court in the context of other proceedings under Section 3, in the years 2001-2004 (see paragraph 38 above). The Court therefore does not accept the applicants’ argument that the length of the proceedings in their case must be attributed in part to the complexity of the relevant domestic legal framework, and by extension to the respondent State.
50. Also relevant to the question of the legal complexity of the proceedings in this case is the constitutional challenge brought by the first applicant to the Act. This was a complex aspect of the proceedings, involving the examination of an array of constitutional objections to the Act. The High Court and the Supreme Court gave extensive and detailed judgments, rejecting the challenge in all respects.
51. As regards the factual complexity of the case, the Court observes from the file that it was not straightforward. This did not affect the initial phase of the proceedings, since the applicants did not oppose the application for a freezing order at that time, and the High Court granted it on the strength of the evidence tendered by the authorities. However, when the applicants eventually sought to discharge the freezing order, this entailed the assessment by the High Court of a considerable body of testimony presented by the applicants about the source of the funds used to acquire the various properties.
52. Above all, the proceedings in this case were characterised by procedural complexity due to the manner in which the applicants sought to pursue their claims. This fact was remarked on repeatedly by the domestic courts that dealt with the case. The Court will consider the impact and implications of this below.
(ii) Conduct of the applicants
54. Thus, the Court considers that the very lengthy time until the applicants finally attempted to seek relief under Section 3(3) of the Act must be primarily attributed to them.
55. Looking at the next stage of the proceedings, that is to say the High Court’s examination in 2006 of their application under Section 3(3) and the Supreme Court’s consideration of their appeal in 2008, the Court notes that the case continued to be characterised by numerous procedural motions brought by the applicants, including further requests to strike the proceedings out. The proceedings progressed in other aspects at this time at the behest of the authorities (appointment of a receiver), opposed by the applicants.
56. The Supreme Court’s ruling in December 2008 dispelled any possible error or misunderstanding on the part of the applicants regarding the correct remedy available to them in the circumstances. The Court underlines that by the time the applicants finally availed themselves of this, the appropriate remedy, in the early months of 2009, more than twelve years had passed since CAB’s initial application to the High Court.
57. The Court also underlines that the principal evidence relied on by the applicants, namely the first applicant’s explanation of the origin of the funds used to acquire the properties in question, was closely examined and emphatically rejected by the High Court, which considered the first applicant to be untruthful. The Court also notes that new proceedings, introduced in 2013 when the final Supreme Court appeal was pending, were rejected by the High Court as vexatious and an abuse of process, with the judge noting that the central issue had been “litigated and re-litigated over and over again” (see paragraph 35 above).
58. In the final stage of the proceedings, that is to say the appeal to the Supreme Court against the three High Court judgments of 2011, the Court notes that the applicants were responsible for significant delays caused by the adjournment of the hearing of the appeal on several occasions. They have not given the Court any valid reason for this. The Court further notes that part of the appellate proceedings was taken up with the applicants’ motion aimed at obtaining the evidence of a forensic accountant. The Supreme Court regarded this as a wholly inappropriate request to make at that very late stage, observing that such evidence could and should have been obtained several years earlier, when the case was before the High Court. In this respect too the diligence and competence with which the applicants conducted their case is open to question.
(iii) Conduct of the authorities
59. The Court will first consider the conduct of the authorities who were the plaintiffs in the domestic proceedings. As already noted, the initial stage of the proceedings was relatively brief. It can be said that CAB was diligent in applying for the final order in July 1997, very soon after the rejection by the High Court of the first applicant’s constitutional challenge to the Act. The Court recalls that, under the provisions of the Act, once the authorities had obtained the grant of the freezing order, the next significant stage was to apply for a discharge order no earlier than seven years later (Section 4(1)). This they did in late 2004. The question of receivership, raised by the authorities in 2007 and settled by the High Court in 2008, does not appear to have had any incidence on the pace of the proceedings.
60. While the applicants sought to blame some of the duration of the proceedings on the plaintiff authorities, describing them as non-cooperative, the Court has not been persuaded that any significant delay can be attributed to their conduct. On the contrary, the information in the file indicates that the authorities invited the Supreme Court to accelerate proceedings in 2008 by grouping appeals and managing the case. Likewise during the final stage, it was the plaintiff that sought dates for the hearing of the appeal.
61. As for the conduct of the judicial authorities, the Court observes once again that the initial stage of the proceedings was free of delay. The freezing order was in place by July 1997. Moreover, the High Court dealt with the first applicant’s constitutional challenge within a period of just over three months. It is true that the appellate stage of the constitutional challenge was somewhat lengthy, the ruling of the Supreme Court coming more than four years later. However, the applicants have not specifically complained of this feature of the proceedings. Given their pursuit of other and varied legal strategies during this time, it does not appear to the Court that the time taken to dispose of their constitutional appeal contributed to the overall duration of the litigation. Moreover, in its judgment of 18 October 2001 the Supreme Court again referred to the correct way for the applicants to seek the lifting of the freezing order, which, as explained above, they did not heed until several years later.
62. The Court notes that in one other respect the domestic courts took a long time to deal with one of the many appeals that featured in this case. The second applicant’s appeal against the High Court’s refusal in July 1999 of her motion to strike the proceedings out on formal grounds was rejected by the Supreme Court, along with other appeals, in April 2005. The applicants specifically criticised this. The Government did not address it. While the Court would ordinarily regard a delay of this length as excessive, in the specific context of this case it is difficult to see that it particularly influenced the course of the proceedings, given the multifarious tactics of the applicants prior and subsequent to this particular ruling. The holding that the order of 16 July 1997 was the final order for the purposes of Section 3 of the Act was contested by the applicants to the very end of the proceedings, and indeed in their submissions before this Court.
63. Otherwise, the Court considers that the judicial authorities cannot be criticised for any unreasonable delay. As pointed out by the Government, the case in reality had to be dealt with like several sets of parallel and successive proceedings and involved a very great number of motions and appeals, some of them repetitive. The Court has already commented critically on the conduct of the applicants over the course of what became sprawling litigation. It observes that the domestic courts actively sought to manage the case at various stages, in view notably of the delays originating with the applicants. This is particularly apparent when the case was on appeal to the Supreme Court from 2012 onwards. The applicants argued that the case revealed structural shortcomings in the domestic judicial system. It is true that the Court has, in previous judgments finding violations of Article 6 on account of the length of proceedings, referred to such a problem in the respondent State (see the overview of relevant cases in Keaney, cited above, § 112). However, in the present case the Government have shown that the relevant High Court case-list remained at a manageable level throughout the period in question. In short, there was no logjam of cases concerning the freezing of property suspected of being the proceeds of crime and no systemic delay in their regard.
(iv) What was at stake for the applicants
64. The applicants submitted that the stakes for them had been very serious, since the proceedings restricted and then terminated their rights of ownership over their homes and associated properties. The Government replied that the duration of the proceedings had played in their favour, since they had retained the use of the disputed properties for a period of 20 years following the making of the freezing order.
65. The Court considers that the stakes in this case cannot be considered in isolation from the purpose for which the proceedings were instituted by the authorities in the first place, namely to freeze and then ultimately to seize assets acquired using the proceeds of serious criminal activity. The domestic courts accepted from the outset that, on the balance of probabilities, the properties in question had been purchased with illicit funds, with the sole exception of a certain part of the value of the third applicant’s house, with reference to which a suitable award was made. The applicants’ attempts to refute this were emphatically rejected by the High Court in 2011, which deemed the first applicant to be untruthful and his testimony unworthy of belief. Accordingly, the Court cannot give any weight to the applicants’ complaint that the length of proceedings undermined their property rights.
66. The net effect of the duration of the proceedings was to permit certain of the applicants, notably the second and the fourth, to continue to reside in the disputed properties until they were eventually required to leave in mid-2017 (the other two applicants indicated as residing elsewhere). The Court therefore does not consider that in these circumstances the duration of the proceedings was unduly prejudicial to them.
(v) Conclusion
67. The Court concludes that while the proceedings taken as a whole ran for twenty years, this was primarily due to the applicants themselves, whose choices and conduct were such as to inevitably breed long delay. This rendered a novel case, which was not without some legal complexity, inordinately complex on the procedural front. Yet the length of time taken to complete all the proceedings was to the benefit of the applicants, in that it postponed for many years the eventual seizure of properties that were adjudged to be the proceeds of crime, in this case large-scale drugs offences. While the applicants were entitled to apply to the courts to resist the confiscation of their properties, they must bear the consequences of their manifold litigation strategies. It is well-established in the Court’s case-law that applicants cannot complain of delay caused by their actions or inactions (see Brennan v. Ireland [Committee] no. 44360/15, §§ 49-50, 2 November 2017; see also McNamara v. the United Kingdom [Committee], no. 22510/13, 12 January 2017, § 59, with further references). The Government have argued that the applicants had essentially engaged in delaying tactics. The Court considers this a justified description of how the applicants conducted themselves over so many years. It refers as an illustration to the separate proceedings they brought in September 2013 before the High Court (see paragraph 35 above), in which they yet again sought to have the case against them struck out for the same reasons. As noted above, that action was dismissed as vexatious and an abuse of process, with the judge noting that there was a limit to how often and in how many different ways the same point can be argued (see paragraph 35 above). In the Court’s view, this epitomises the stance of the applicants in their ultimately futile 20-year challenge to the efforts of CAB to implement the Proceeds of Crime Act against them.
68. For the above reasons the Court finds that, in the circumstances of the present case, there has been no violation of Article 6 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13, IN CONJUNCTION WITH ARTICLE 6 § 1, OF THE CONVENTION
69. When communicating this case along with three other applications in relation to length of proceedings (including Keaney, cited above, in which judgment was delivered on 30 April 2020), the Court invited the parties in all four cases to address the issue of the existence in Irish law of an effective remedy for violations of the right to trial within a reasonable time. In their reply, the applicants submitted that such a remedy was lacking domestically, contrary to Article 13 of the Convention, which reads as follows:
“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.”
70. The Government’s reply has been set out in the Court’s judgment in the Keaney case (cited above, §§105-106).
71. When the Court communicates an application to the Government of the respondent State, identifying and framing the issues to be addressed by the parties in their submissions, it does so on the basis of the file in its initial form. In practice it has to rely mainly on the material presented by the applicant in support of their allegation of one or more violations of the Convention. By the close of the adversarial phase of the proceedings, the Court will generally have a clearer, more complete and more detailed insight into the facts of the case and the Convention issues to which they give rise. It will also have the benefit of the parties detailed pleadings on the legal and factual elements in their case. It may emerge over the course of the proceedings that aspects that appeared possibly relevant at the outset ultimately prove to be less so.
72. In its examination of the applicants’ complaint about the duration of the proceedings in which they were involved, the Court has reached conclusions about the extent to which they must be held responsible for the overall length of the proceedings, and about the purpose in reality of their varied and successive litigation strategies. It has also taken note of the stinging criticism of the first applicant by the High Court when he at last led the evidence that was supposed to refute that put forward by CAB as to the origin of the funds invested in the properties owned by the Gilligan family. The Court has formed the view that the prospect of speeding the proceedings efficiently towards a conclusion held little real interest for the applicants, whose conduct strongly suggested the contrary intention. In these circumstances, it would be inappropriate for the Court to critically inquire into the question of an effective remedy in the domestic legal order; a question which has already been addressed in Keaney, cited above, and which is the subject of further applications currently pending before the Court.
73. Given the lack of any real significance in this case and for these applicants of the issue of a domestic remedy as expounded in its case-law, which the four applicants did not initially raise in their application, the Court considers it unnecessary to now examine the matter.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 6 § 1 admissible;
2. Holds that there has been no violation of Article 6 § 1 of the Convention;
3. Holds that there is no need to examine the question whether there has been a violation of Article 13 of the Convention.
Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President