Ireland Condemned by Grand Chamber of European Court of Human Rights for Fair Trial Violation

Today, the Grand Chamber of the European Court of Human Rights ruled against Ireland in a case involving unreasonable delay in a criminal prosecution: Here is the Court's press release in McFarland v. Ireland (for the full decision, click here):

Principal facts

The applicant, Brendan McFarlane, is an Irish national who was born in 1951 and lives in Belfast. The case concerned unjustified delays in the criminal proceedings brought against him for offences allegedly committed in 1983, of which he was acquitted in 2008.

In January 1998 Mr McFarlane was released on parole after serving a prison sentence in Northern Ireland for his involvement in a bombing in the 1970s for which the IRA (Irish Republican Army) was found to be responsible. A few days after his release, he was arrested and detained by the Irish police and subsequently charged by the Special Criminal Court (SCC) in Dublin with false imprisonment and the unlawful possession of firearms, offences he was alleged to have committed in 1983 when he had escaped from prison. On 13 January 1998 he was released on bail, subject to reporting restrictions

Mr McFarlane brought judicial review proceedings with regard to his prosecution, claiming that the delay in bringing criminal proceedings against him had prejudiced his chance of having a fair trial and that the failure of the prosecuting authorities to maintain and have available for inspection certain items of evidence (such as fingerprints) had limited his ability to fully contest the nature and strength of the evidence to be introduced at his trial. His claims regarding the delay in bringing proceedings were eventually dismissed by the Supreme Court in 2006, finding that the decision when to prosecute clearly rested with the prosecuting authorities. With regard to the loss of evidence, the Supreme Court concluded that the trial court deciding on the case would have to assess whether there was any unfairness for which the prosecution was responsible. A further application to prohibit the prosecution on grounds of delay was dismissed in January 2008. During the criminal proceedings against him, Mr McFarlane reported to the SCC some 40 times, a round trip to and from his home of 320 km. He was finally acquitted in June 2008.

Complaints, procedure and composition of the Court

The applicant complained: under Article 6§1, that the Irish authorities delayed bringing and proceeding with the criminal proceedings against him; under Article 6§3(d), that, as a result of the delay, key prosecution evidence was lost and that there was a lack of evidence against him other than questionable police interviews; under Article 8§2 (right to respect for private and family life), that his arrest and detention amounted to a deliberate and disproportionate interference with his private and family life; and, under Article 13, that there was no effective remedy under Irish law for his grievances, particularly concerning the length of the proceedings.

The application was lodged with the European Court of Human Rights on 21 July 2006.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Decision of the Court

Article 13

The Court did not find effective any of the domestic remedies proposed by the Irish Government.

Concerning the first and main remedy proposed – an action for damages for a breach of the constitutional right to reasonable expedition – the Court found that there was significant uncertainty as to its availability.

While it had been available in theory for almost 25 years, it had never been invoked. The development and availability of a remedy said to exist, including its scope and application, had to be clearly set out and confirmed or complemented by practice or case law, even in the context of a common law inspired system with a written constitution providing an implicit right to trial within a reasonable period of time (as in Ireland).

The Court also considered that it had not been demonstrated that such an action could constitute a remedy as regards a judge’s delay in delivering a judgment. Moreover, the fact that the proposed constitutional remedy would form part of the High and Supreme Court body of civil litigation, for which no specific and streamlined procedures had been developed, meant that it would amount to a legally and procedurally complex constitutional action for damages in the High Court, with a likely appeal to the Supreme Court which, at least at the outset, would present some legal novelty. Two problems ensued: the time such proceedings could take (possibly several years) and the potentially high legal costs and expenses involved in taking such an action.

As to the remaining remedies proposed by the Irish Government, the Court found an action for damages under the European Convention of Human Rights Act 2003 ineffective since, among other things, it appeared that any delay attributable to “the courts” was not actionable under that Act and since the 2003 Act did not enter into force until 31 December 2003, by which time the applicant’s proceedings had been ongoing for almost six years (the 2003 Act is not retroactive). An application for a prohibition order by reason of prejudice and real risk of unfair trial due to delay was substantively different from, and not effective as regards, a complaint about unreasonable delay within the meaning of Article 6 § 1.

The Court therefore concluded that the Government had not demonstrated that any of the remedies proposed by them constituted effective remedies available to the applicant in theory and in practice at the relevant time. Accordingly, there had been a violation of Article 13, in conjunction with Article 6 § 1.

Article 6 § 1

The Court considered that the criminal proceedings against the applicant had lasted over 10 years and six months, from the applicant’s arrest on 5 January 1998 to his acquittal on 28 June 2008.

While the conduct of the applicant had contributed somewhat to the delay, it did not explain the overall length of the proceedings against him. On the other hand, the Government had not provided convincing explanations for certain delays attributable to the authorities, which added to the overall length of the criminal proceedings.

As to what was at stake for the applicant, the charges against him were serious and he bore the weight of such charges and of the potential sentences, for approximately 10 years and six months, during which time he had reporting obligations and was frequently required to appear in Dublin before the SCC.

The Court concluded that the overall length of the criminal proceedings against the applicant were excessive, in violation of Article 6 § 1.

We'll discuss this at the next PhD student seminar, scheduled for 28 September at 17h00 in my office.