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FIFTH
SECTION
CASE OF
O. v. IRELAND
(Application
no. 43838/07)
JUDGMENT
STRASBOURG
19 January
2012
This
judgment is final but it may be subject to editorial revision.
In the case of O. v. Ireland,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Dean
Spielmann,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43838/07) against Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Irish
national, O (“the applicant”), on 4 September 2007.
- The
applicant was represented by Mr N. McCartan, a solicitor practising
in Dublin. The Irish Government (“the
Government”) were represented by their Agent, Mrs P. White, of
the Department of Foreign Affairs.
- On
16 April 2009 the
President of the Third Section decided to give notice of the
application to the Government.
THE FACTS
- The
applicant was born in 1937 and lives in Dublin.
- In
July 1995 the applicant priest became aware of allegations of sexual
abuse against him about alleged events in the 1980s. These
allegations were made in a letter from the complainant’s
solicitor to the applicant’s religious order. In September 1995
a formal police complaint was made. In June 1996 the applicant was
interviewed by the police.
- In
June 1997 the applicant was charged before the District Court on
three counts of indecent assault. In October 1997 the case was
transferred to a Circuit Criminal Court where he was charged with a
further six counts of indecent assault. A hearing date was fixed (for
March 1998).
- In
February 1998 the applicant sought disclosure of records from a
psychiatrist who had treated the complainant. The trial was then
adjourned: the applicant claimed that was due to a conflict of
interest on the part of the trial judge and the Government claimed
that it was partly because the psychiatrist’s records were not
available at such short notice.
- The
applicant began judicial review proceedings in the High Court seeking
the prohibition of the criminal proceedings on grounds of delay and
seeking disclosure of the psychiatrist’s records. In March 1999
the High Court rejected the application concerning delay and no order
for discovery of the psychiatric records was made because the
prosecution undertook to procure them. Since the relevant
psychiatrist was unwilling to disclose the medical records, in July
1999 the High Court directed the psychiatrist to make discovery,
which was done in October 1999. The applicant then applied for
discovery of medical records in the possession of North Eastern
Health Board. In February 2000 the High Court directed the Circuit
Criminal Court to order discovery against the Health Board. In March
2000 the Circuit Criminal Court so ordered and in September 2000 the
Health Board made discovery.
- In
October 2000 the trial began but the jury was discharged and the
trial was transferred to another Circuit Criminal Court (the “trial
court”).
- The
applicant sought to trace the authors of entries in the medical
records and maintained that there had not been full disclosure of all
relevant medical records. The trial was listed for June 2001.
However, since witness tracing was incomplete, the trial was
adjourned and further discovery orders were made. In early November
2001 statements from the authors of the entries in the medical
records were disclosed to the applicant. In March 2002 the
prosecution stated to the trial court that another file had been
submitted with those statements, that it needed time to furnish it to
the applicant but that it would only proceed with the counts of
indecent assault with which the applicant had been charged in June
1997. The trial was fixed for October 2002.
- In
June 2002 the applicant applied to the High Court for leave to apply
for judicial review for an order prohibiting his trial because of the
delay caused by the failure to make full disclosure. In February 2003
the High Court ruled in his favour. In April 2003 the prosecution
appealed to the Supreme Court. In December 2004 the written judgment
of the High Court was delivered and in April 2005 the prosecution
amended its appeal. In February 2007 the Supreme Court heard the
appeal. By judgment of March 2007 (a majority of three to two) it
allowed the appeal. Fennelly J, giving judgment for the majority,
found that the prosecution was not to blame for the delay. In
determining whether an order for prohibition should be made, the
correct approach was to balance the right of the accused to be
protected from stress and anxiety caused by an unnecessary and
inordinate delay against the public interest in the prosecution and
conviction of those charged with criminal offences. There was no
evidence that the applicant had suffered excessive pre-trial anxiety.
- In
May 2007 the prosecution requested the trial court not to fix a trial
date as a police officer was ill and would be ill for a further six
months. The court fixed a trial date for March 2008. In January 2008
the applicant applied to stay his prosecution pending judgment in the
present application having regard to a stay on prosecution obtained
in the Barry case (see Barry v. Ireland, no. 18273/04,
15 December 2005, BAILII: [2005] ECHR 865 ). The trial court adjourned to February 2008 to
receive information on whether the Barry prosecution had
indeed been stayed. In February 2008 the trial date (foreseen for
March 2008) was vacated since a police witness had had a car
accident. At end March 2008 the case was adjourned to May 2008:
prosecution submissions on the applicant’s request for a stay
on the prosecution were outstanding. In May 2008 the prosecution made
those submissions (objecting to a stay) and applied for a hearing
date but after the court recess of 2009 (since a police witness would
be incapacitated for some time). The trial court fixed a trial date
for early July 2009.
- Before
the trial date, in June 2009, the prosecution drew the applicant’s
attention to a reference, in material already disclosed to him, to
the complainant having been referred for hypnosis: the prosecution
was making further inquiries. By letter of June 2009 the prosecution
confirmed that the complainant had not in fact received such
treatment. Once the applicant’s further requests for
confirmation that the complainant had not been so treated had been
responded to, a trial date was fixed for January 2010.
- The
trial took place over 4 days in January 2010, at the end of which
hearing the trial judge directed the jury to return a verdict of
not-guilty given, inter alia, the unavailability of three
medical witnesses (one of whom had died). The criminal prosecution
thereby ended.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF PROCEEDINGS)
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
period to be taken into consideration began in June 1996 (when the
applicant indicated he was aware of police involvement) and ended
with his acquittal in January 2010. The proceedings thus lasted
almost 13 years and 7 months for one level of jurisdiction (the
intervening judicial review proceedings having been before the High
Court twice with one appeal to the Supreme Court).
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies as he had not taken an action for damages for breach of the
constitutional right to reasonable expedition. The applicant
disagreed.
- The
Court recalls its conclusions in the McFarlane v. Ireland
judgment ([GC], no. 31333/06, § 128-129, ECHR 2010 ..., BAILII: [2010] ECHR 1272 ) to
the effect that the Government had not demonstrated that the remedies
proposed by them, including an action for damages for a breach of the
constitutional right to reasonable expedition, constituted effective
remedies available to the applicant in theory and in practice at the
relevant time. It concluded that there had therefore been a violation
of Article 13, in conjunction with Article 6 § 1 of the
Convention, and consequently, it dismissed the Government’s
objection in that case as to a failure to exhaust domestic remedies.
The Court does not see any reason to reach a different conclusion in
the present case and it therefore dismisses this objection of the
Government.
- The
Court further considers that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other ground. It
must therefore be declared admissible.
B. Merits
- 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 (see, among
many other authorities, the above-cited McFarlane judgment, at
§ 140).
- The
Court has already found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (for example, Barry v. Ireland, no. 18273/04, 15 December
2005 and the above cited McFarlane case).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
(FAIRNESS OF PROCEEDINGS)
- The
applicant further complained that he would not receive a fair trial
because of non-disclosure of the complainant’s records.
However, since the applicant was acquitted, he cannot claim to be a
victim of alleged procedural unfairness (Józef Oleksy v.
Poland (dec.) no. 1379/06, 16 June 2009, with further citations
therein, as well as the McFarlane judgment, cited above, at §
78).
- It
follows that this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered this excessive and left the matter to the
Court’s discretion to decide the matter on the basis of
relevant case law.
- Ruling
on an equitable basis, the Court awards award him 8,500 euros (“EUR”)
under that head, plus any tax that may be chargeable to the
applicant.
B. Costs and expenses
- The
applicant also claimed EUR 30,000 in solicitors fees, EUR 10,000
in Counsel’s fees to which value-added tax (“VAT”)
of 21% applied amounting to a total claim of 48,400 (inclusive of
VAT) for the costs and expenses incurred before the Court.
- The
Government considered the claim excessive, noting the lack of
itemisation of the claimed costs. They left the matter to the Court’s
discretion to decide in accordance with its relevant case law.
- Regard
being had to the documents in its possession (which do not itemise
the relevant lawyers’ work) and to its case-law, the Court
considers it reasonable to award the sum of EUR 3,500, inclusive of
VAT plus any other tax that may be chargeable to the applicant, as
regards his costs and expenses of the proceedings before this Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months:
-
EUR 8,500 (eight thousand five hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage; and
-
EUR 3,500 (three thousand five hundred euros), inclusive of VAT plus
any other tax that may be chargeable to the applicant, in respect of
the costs and expenses of the Convention proceedings;
(b) that
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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing 19 January 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
