CASE OF O'NEILL AND LAUCHLAN v. THE UNITED KINGDOM

FIRST SECTION

CASE OF O’NEILL AND LAUCHLAN v. THE UNITED KINGDOM

(Applications nos. 41516/10 and 75702/13)

JUDGMENT

STRASBOURG

28 June 2016

FINAL

28/11/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of O’Neill and Lauchlan v. the United Kingdom,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mirjana Lazarova Trajkovska, President,
Ledi Bianku,
Linos-Alexandre Sicilianos,
Paul Mahoney,
Aleš Pejchal,
Robert Spano,
Pauliine Koskelo, judges,

and Abel Campos, Section Registrar,

Having deliberated in private on 3 May 2016 and 24 May 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 41516/10 and 75702/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Charles Bernard O’Neill and Mr William Hugh Lauchlan (“the applicants”), on 15 July 2010 and 28 November 2013 respectively.

2. The first applicant was born in 1962 and is currently detained in HMP Glenochil in Scotland. He was represented by McClure Collins Solicitors, a firm of solicitors practising in Glasgow. The second applicant was born in 1976 and is currently detained in HMP Edinburgh in Scotland. He was represented by Fitzpatrick & Co, a firm of solicitors practising in Glasgow. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

3. The applicants’ complaints concerning the length of their criminal proceedings were communicated to the Government on 13 November 2012 and 17 December 2012 respectively.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The initial investigation

4. On 16 February 1998 R.M. reported his ex-wife, A.M, missing.

5. On 24 February 1998 police carried out an initial forensic investigation of an apartment which A.M. and her son had shared with the applicants in June 1997, the date she had last been seen.

6. An Interim Missing Persons report was prepared by police and submitted to the Procurator Fiscal on 1 May 1998, with later reports following on 31 August 1998 and 8 September 1998.

7. On 30 June 1998 police obtained a search warrant in respect of the apartment A.M. had shared with the applicants. However, a full forensic examination of the property does not appear to have disclosed any relevant evidence.

8. On 18 August 1998 the applicants were sentenced to periods of imprisonment of eight years’ and six years’ respectively following their conviction for various sexual offences. The complainer in relation to some of those offences was A.M.’s son. Following conviction, both applicants were placed on the Sexual Offenders’ Register.

9. By September 1998 A.M.’s disappearance was being referred to by the Procurator Fiscal at Kilmarnock as “suspicious” and Crown Counsel described the police inquiry into her disappearance as a “murder inquiry”. On 14 September 1998 the police sought authorisation for the release of the applicants from HMP Peterhead into their custody so that they could be interviewed with regard to the disappearance and suspected murder of A.M.

10. On 17 September 1998, while serving their sentence at HMP Peterhead, the applicants were detained by the police under section 14 of the Criminal Procedure (Scotland) Act 1995 and removed to Queen Street Police Office in Aberdeen. On the same day the applicants were interviewed separately by police officers for over five hours. During these interviews they were directly accused of the murder of A.M. Both applicants asked police officers if they were going to be charged with the murder, but received indications to the contrary. Following the interviews, neither applicant was arrested or charged with any offence owing to insufficient evidence. They were therefore returned to prison to continue serving their respective sentences.

11. By November 1998 no progress had been made in finding A.M. and the police inquiry was scaled down. A full Missing Person Report was submitted to the National Missing Persons Bureau at New Scotland Yard (London). The case was continued as a live enquiry and periodic reviews were conducted by police.

12. The applicants were released from custody on licence on 22 May 2003 and 18 January 2002 respectively. They both travelled to Spain without notification, thereby breaching the terms of their parole licence in contravention of the Sex Offenders Act 1997. The Scottish Executive subsequently revoked their licences.

13. In April 2004 the applicants were arrested in Spain in connection with the apparent abduction of a fourteen year old boy. They were returned to the United Kingdom, where they were recalled to prison to serve the unexpired portion of their licence periods.

14. On 10 November 2004 both applicants appeared on indictment in respect of offences contrary to the Sex Offenders Act 1997. They pled guilty and on 4 April 2005 they were sentenced to a further three years’ imprisonment, which was reduced on appeal to eighteen months.

B. The charges

15. Between 1 and 4 April 2005 a decision was made by the Procurator Fiscal, following consultation with Crown Counsel, to place both applicants on petition in relation to the murder of A.M. The Crown’s position was that A.M. had threatened to report the applicants to the police after discovering that they were sexually abusing her son. The applicants’ had subsequently killed her and disposed of her body.

16. On 5 April 2005 the applicants were charged with the murder of A.M. and with concealing and disposing of her body in an attempt to pervert the course of justice. They appeared on petition at Kilmarnock Sheriff Court were they were committed for further examination and remanded in custody.

17. The police continued to pursue their investigation and enquiries.

18. On 6 June 2005 the Crown Office provisionally fixed a preliminary hearing date for 12 September 2005. That hearing date was set aside as the first applicant lodged a “devolution minute” (see paragraphs 51-52 below) relating to a potential violation of the reasonable time guarantee contained within Article 6 § 1 of the Convention. On 14 October 2005 the Sheriff Court held that the devolution minute had been raised prematurely as no indictment had been served. On 7 December 2005 the High Court dismissed the first applicant’s appeal against that decision and refused him leave to appeal to the Judicial Committee of the Privy Council.

19. Meanwhile, a Proof of Life report was produced on 18 November 2005 (supplemented on 5 January 2006), which concluded that A.M. had been dead since approximately June 1997.

20. In late 2005 Crown Counsel had concerns regarding the sufficiency of evidence against the second applicant. Although the evidence against the first applicant was stronger, the understanding that the applicants had acted together would have made a trial against the first applicant only very difficult. Therefore, on 19 December 2005 the Crown decided to take “no proceedings meantime” (see paragraph 49 below) with regard to the 2005 petition.

21. Following reviews of the case in February and March 2006, Crown Counsel instructed that no new additional material had come to light which would justify reconsideration of that decision. However, the decision would remain under periodic review.

22. Pursuant to sections 65(1)(a) and (1A) of the Criminal Procedure (Scotland) Act 1995, a trial had to take place within twelve months of the accused’s first appearance on petition in respect of the offence, although this period could be extended either within the twelve-month period or retrospectively (see paragraph 48 below). The twelve-month period for bringing proceedings expired on 4 April 2006 and the Lord Advocate did not seek an extension of time. On 26 April 2006 the applicants were informed that there would be “no proceedings meantime”.

23. By November 2006 both applicants had served the custodial element of their earlier criminal sentences and were released from prison. They both travelled to live in Spain for a period before returning to the United Kingdom in November 2007.

24. The police continued to conduct periodic reviews of the decision to take “no proceedings meantime” in respect of the 2005 petition. Furthermore, Central Scotland Police formed “Operation Aspen”, the objective of which was to look for evidence both of further sexual offending by the applicants, and of their involvement in the disappearance of A.M.

25. As a result of Operation Aspen, new evidence came to light concerning the circumstances of A.M.’s disappearance and the applicants’ sexual offending. Consequently, on 9 September 2008 Crown Counsel concluded that there had been a material change in the prospects of securing a conviction against both applicants on the murder charges contained in the earlier 2005 petition.

C. The indictment

26. On 10 September 2008 the applicants were served with an indictment which contained the same charges as the 2005 petition. It also contained a number of additional charges relating to various sexual offences.

27. The second applicant lodged a devolution minute on 15 September 2008 in which he argued that certain missing evidence would have a prejudicial impact on the fairness of his trial.

28. The following day the first applicant lodged a devolution minute, arguing that he could not receive a fair trial within the meaning of Article 6 owing to the significant delay which had occurred in his case.

29. On 10 October 2008 a preliminary hearing was held at the High Court in Glasgow where further preliminary notices and devolution minutes were served on behalf of both applicants. The Crown also made an application under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995 for a retrospective extension of the twelve-month time-limit contained within section 65(1) of that Act (see paragraph 48 below).

30. Between 4 November 2008 and 20 February 2009 there were a number of preliminary hearings in respect of the Crown’s application for an extension. Following the hearing on 20 February 2009 the application was granted. The High Court found that the Crown had acted properly in investigating and reviewing the evidence between 1997 and 2008; that the expiry of the section 65 time-limit had come about through a positive decision rather than through inadvertence; and that new evidence had since come to light so as to allow the Crown to proceed against both applicants. Although the applicants were granted permission to appeal, their appeal was refused on 5 June 2009.

31. At a preliminary hearing on 29 June 2009 the High Court allowed motions by the applicants to separate the murder charges from the sexual offences charges. The first applicant also argued that the murder charge against him should be dismissed for reason of delay. However, the court refused to dismiss the charge, finding, inter alia, that proceedings had begun on 5 April 2005; that the “reasonable time” permitted by Article 6 had not been exceeded; that the fairness of the upcoming trial had not been jeopardised; and that there was no other compelling reason why it would be unfair to proceed to trial.

32. The first applicant appealed against the decision not to dismiss the charge against him. The Lord Advocate brought a cross-appeal against the decision to separate the charges.

33. Both appeals were dismissed on 26 November 2009. In dismissing the first applicant’s appeal, the Appeal Court accepted that the police had interrogated him “robustly” in 1998, but agreed with the High Court that he was not “charged” until 5 April 2005. The court considered that the Crown had acted without fault since that time, and, in the particular circumstances of the case, it could not be said that the matter would not be determined within a reasonable time.

34. The Appeal Court and the Supreme Court refused the first applicant leave to appeal on 26 November 2009 and 22 February 2010 respectively.

35. Further preliminary hearings took place between January 2010 and May 2010 in respect of various petitions and minutes lodged by the applicants.

D. The applicants’ trials

1. Sexual offences

36. The applicants’ trial for the sexual offences took place between 19 April 2010 and 13 May 2010. On 12 May 2010 the applicants were convicted on numerous counts and sentenced to periods of imprisonment ranging from eight to ten years to run concurrently. Both applicants unsuccessfully sought to appeal against conviction and sentence.

2. Murder

37. The murder trial began at the High Court in Glasgow on 17 May 2010 with the Crown leading evidence from over fifty witnesses.

38. On 4 June 2010 the second applicant addressed the Court on his devolution minute dated 15 September 2008 (see paragraph 27 above). The High Court dismissed the minute as the arguments advanced by the second applicant related to unreasonable delay and not to missing evidence (which was the argument raised in the original minute). The second applicant did not appeal the decision.

39. On 10 June 2010 a jury convicted the applicants of murder and attempting to pervert the course of justice. They were sentenced to life imprisonment for murder, with a tariff of thirty years for the first applicant and twenty-six years for the second applicant. They were also sentenced to concurrent sentences of eight years imprisonment for attempting to pervert the course of justice.

E. The appeal against conviction and sentence

40. The applicants appealed against conviction and sentence. The first applicant lodged a Note of Appeal on 2 September 2010, containing numerous grounds and sub-grounds on a wide range of issues regarding all the charges. The sifting judges granted him leave to appeal against his sentence for murder, but not against his conviction. The second applicant lodged a Note of Appeal on 27 August 2010. On 3 February 2011 leave to appeal was refused by the judge at first sift. On 4 July 2011, following the second sift, leave to appeal against conviction was granted though restricted to two grounds relating to alleged errors by the trial judge. The second applicant was also granted leave to appeal against sentence.

41. The applicants subsequently applied under section 107(8) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) for leave to reinstate grounds which the sifting judges had found to be unarguable, including those relating to the length of proceedings.

42. An oral hearing took place on 8 November 2011. On 8 February 2012 the Appeal Court granted the first applicant leave to appeal against his conviction on one ground only, which alleged an error by the trial judge. The second applicant was refused leave to appeal on the grounds raised.

43. The applicants sought leave to appeal to the Supreme Court against the Appeal Court’s refusal to grant leave to appeal on the additional grounds.

44. On 19 April 2012 the Appeal Court granted both applicants leave to appeal on the issue of undue delay. The court also granted the first applicant permission to appeal against his conviction on another ground alleging apparent bias on the part of the trial judge.

45. A hearing took place on 29 and 30 April 2013 before the Supreme Court, which gave judgment on 13 June 2013. The main issue before the Supreme Court was whether the applicants could be said to have been “charged” on 17 September 1998 or whether the appropriate “starting point” for the purposes of Article 6 § 1 was 5 April 2005. The court assessed the evidence in light of the relevant case-law of the domestic courts and of this Court. In doing so, it distinguished the applicants’ case from that of Ambrose v. Harris [2011] UKSC 43, in which the Supreme Court accepted that an appellant, who was complaining that there had been a breach of his right to legal advice under Article 6 § 1, had been “charged” following his caution by police in connection with the alleged offence. The Supreme Court observed that as the “fair trial” guarantee under Article 6 was distinct from the “reasonable-time” guarantee it had to be approached separately. Therefore, the fact that the applicants had been subjected to questioning on 17 September 1998 that might have affected their right to a fair trial did not mean that this was the relevant “starting point” for determining whether proceedings had been conducted within a “reasonable time”. The court concluded that the correct “starting point” in the applicants’ proceedings was 5 April 2005 and the case was remitted to the Appeal Court.

46. The Appeal Court dismissed the first applicant’s appeal against conviction and sentence on 27 March 2014, and the second applicant’s appeal on 19 June 2014.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Criminal Procedure (Scotland) Act 1995

47. The relevant sections of the 1995 Act with regard to the right of appeal, the note of appeal and the written report, and the sift procedure are summarised in Beggs v. the United Kingdom, no. 25133/06, §§ 171-177, 6 November 2012.

48. Section 65 of the 1995 Act is intended to prevent delay in trials. Subsection (1) provides that a preliminary hearing, following service of an indictment, must take place within eleven months and in any event a trial must take place within twelve months of the first appearance of the accused on petition in respect of the offence. Subsection (3) allows that period to be extended retrospectively.

49. Therefore, pursuant to the Prosecution Code, where the prosecutor decides that there is insufficient available evidence to justify proceedings in respect of a serious allegation but there is a possibility that further evidence implicating the accused will be submitted within a reasonable time, the case may be marked “no proceedings meantime”.

B. Devolution and compatibility issues

50. Section 57(2) of the Scotland Act 1998 (“the 1998 Act”) provided that the Scottish Executive (of which the Lord Advocate was a member) had no power to act in a manner incompatible with the Convention.

51. A devolution issue, which could arise in civil or criminal cases, was an issue raised under Schedule 6 to the 1998 Act concerning whether a legislative provision or an administrative act passed or taken under the Scotland Act 1998 was within the powers of the Scottish Parliament or the Scottish Executive.

52. In Russell v. Thomson [2010] HCJAC 138, the Appeal Court observed:

“15. A Devolution Minute in an appeal process, which complains of the actions of the lower court, does not have a life of its own. It requires to be linked to the grounds of appeal raised. In this case, these grounds are expressed in the appellant’s Note of Appeal and are simply that the appellant’s conduct, as spoken to by the witnesses, did not amount to a breach of the peace. The Note defines the scope of the appeal. If the appellant had wished to pursue any of the many matters contained in his Devolution Minute, he should have included them in his Note of Appeal. If he had failed to do that, he should have applied to the court to allow that Note to be amended to include them ...”

53. The Scotland Act 2012 (and in particular sections 34 – 38 which came into effect on 22 April 2013) amended the 1998 Act. In particular, in criminal cases it re-categorised a number of “devolution issues” which raised questions of European Union or Convention law as “compatibility issues”. A compatibility issue is defined in section 288ZA of the Criminal Procedure (Scotland) Act 1995 as being:

“a question, arising in criminal proceedings, as to—

(a) whether a public authority has acted (or proposes to act)—

(i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or

(ii) in a way which is incompatible with EU law, or

(b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights or with EU law.”

54. The 2012 Act also provided a specific statutory right of appeal to the Supreme Court in Scottish criminal cases where a compatibility issue arose. Once the compatibility issue has been determined, the Supreme Court was required to remit proceedings to the High Court for the case to be concluded.

C. Remedies for delay in legal proceedings in Scotland

55. As a consequence of section 57(2) of the Scotland Act 1998, in carrying on prosecutions or directing them to be carried on the Lord Advocate may not act incompatibly with Article 6 § 1 of the Convention. Thus, an accused person in Scotland who complains about undue delay in criminal proceedings under Article 6 § 1 may raise a compatibility issue (previously a devolution issue) against the Lord Advocate under section 57(2) of the Scotland Act 1998 or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998 (see R v. HM Advocate [2002] PC D3, per Lord Steyn at paragraph 1). He may also bring civil proceedings in the High Court alleging a violation of section 6 of the Human Rights Act 1998 in the event that he is dissatisfied with the remedy granted by the High Court.

56. In Mills v. HM Advocate [2002] UKPC D1, the Privy Council was required to examine whether, following an unreasonable delay in the hearing of an appeal, the reduction in sentence awarded by the High Court provided adequate redress. The Privy Council considered that in light of the express acknowledgement of a violation of the Convention and the extent of the reduction in sentence, there had been adequate redress and the applicant was no longer a victim of any violation.

57. Lord Steyn noted the available remedies for delay in criminal proceedings (at paragraphs 15 – 16):

“The separate question of the remedies available in respect of a breach of the guarantee of a hearing within a reasonable time must now be considered. The court is entitled to be informed of all factors logically relevant to the appropriateness of the remedy. In a post-conviction case, for example, the fact that the accused’s guilt was established at trial and that an unmeritorious appeal was dismissed, is undoubtedly a relevant factor in considering what remedy, if any, to grant.

The remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration. A finding of a violation of a guarantee may itself sometimes be a sufficient vindication of the right: Eckle v Germany (Just Satisfaction) (1983) 13 EHRR 556, 560, para 24 ...”

58. Similarly in R v. HM Advocate [2002] UKPC D3, the applicant complained of a breach of the reasonable-time requirement. Lord Steyn, setting out domestic law, noted (at paragraph 1):

“The result of this scheme is that an accused person in Scotland who complains about undue delay in criminal proceedings under article 6.1, may raise a devolution issue against the Lord Advocate under section 57(2) or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998.”

59. On the question of remedies, he explained (at paragraph 11):

“The width of the reasonable-time guarantee is relevant to the separate question of the remedies available for a breach. There is no automatic remedy. In this case too the role of the Strasbourg Court is a residuary one. In the Strasbourg Court the only remedies available are therefore declaratory judgments and awards of damages. But domestic courts have available a range of remedies for breach of the reasonable time guarantee. In a post-conviction case the remedies may be a declaration, an order for compensation, reduction of sentence, or a quashing of the conviction: see Mills v H M Advocate (No 2), 2002 SLT 939, 944, para 16. In a pre-conviction case the remedies may include a declaration, an order for a speedy trial, compensation to be assessed after the conclusion of the criminal proceedings, or a stay of the proceedings. Where there has been a breach of the reasonable time guarantee, but a fair trial is still possible, the granting of a stay would be an exceptional remedy.”

60. The majority of the Privy Council held that in light of the acceptance by the prosecution that there had been unreasonable delay in the case, it would be incompatible with the appellant’s right to a determination of a criminal charge against him within a reasonable time for the Lord Advocate to continue to prosecute him on two of the charges on the indictment and, as section 57(2) of the Scotland Act 1998 provided that the Lord Advocate had no power to do an act which was incompatible with the Convention right, the plea in bar of trial should be sustained and the relevant charges dismissed from the indictment.

61. In Gillespie v. HM Advocate, 2003 SLT 210 the appellate court found a breach of Article 6 on length and granted, by way of remedy, a reduction of six months in the punishment part previously imposed by the High Court.

62. In Spiers v. Ruddy [2008] UKPC D2, the Privy Council once again considered the range of remedies available for breach of the reasonable time requirement. Lord Bingham concluded (at paragraph 16):

“...The European Court does not prescribe what remedy will be effective in any given case, regarding this as, in the first instance, a matter for the national court. The Board, given its restricted role in deciding devolution issues, should be similarly reticent. It is for the Scottish courts, if and when they find a breach of the reasonable time provision, to award such redress as they consider appropriate in the light of the Strasbourg jurisprudence.”

THE LAW

I. JOINDER OF THE APPLICATIONS

63. The two applications in the present case (nos. 75702/13 and 41516/10) raise the same issues. The Court therefore considers that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF THE “REASONABLE-TIME” REQUIREMENT UNDER ARTICLE 6 § 1 OF THE CONVENTION

64. The applicants submitted that the length of the criminal 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...”

65. The Government contested that claim.

A. Admissibility

1. Non-exhaustion

66. The Government contended that the first applicant had failed to exhaust domestic remedies since, at the time of lodging his application with the court (15 July 2010), his application for permission to appeal against conviction and sentence was pending. Furthermore, on the date his application was communicated to the Government (13 November 2012), interlocutory proceedings concerning, inter alia, the issue of undue delay were pending before the Supreme Court.

67. The first applicant argued that the combined effect of the Supreme Court judgment in Spiers v. Ruddy [2008] UKPC 2 (see paragraph 62 above) and sections 34 – 38 of the Scotland Act 2012 (see paragraphs 53-54 above) meant that by the time his appeal was considered by the Supreme Court, there was no longer any effective domestic remedy available to him.

68. The rule of exhaustion of domestic remedies in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. It normally requires that the complaints intended to be made at international level should have been aired before the appropriate domestic courts, at least in substance, in compliance with the formal requirements and time‑limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III; and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 89, 23 June 2015).

69. The object of the rule is therefore to allow the national authorities to address the allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised, the national legal order has been denied the opportunity which the rule on exhaustion of domestic remedies is intended to give it to address the Convention issue.

70. The requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court (Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)), subject to exceptions which may be justified by the particular circumstances of the case, notably following the creation of new remedies. Nevertheless, the Court has accepted that applicants have exhausted domestic remedies where the last stage of such remedies was reached shortly after the lodging of the application but before it determined the issue of admissibility (Ringeisen v. Austria, 16 July 1971, § 91, series A No. 13, EK v. Turkey (dec.), No. 28496/95, 28 November 2000, Karoussiotis v. Portugal, No. 23205/08, §§ 57 and 87-92, ECHR 2011 and Cestaro v. Italy, no. 6884/11, § 146, 7 April 2015).

71. The present case is not one where domestic remedies were exhausted “shortly after” the submission of the application with this Court. On the contrary, almost four years lapsed from the date of submission of the first applicant’s application (15 July 2010 – see paragraph 1 above) to the date domestic remedies were finally exhausted in respect of his complaints (27 March 2014 – see paragraph 46 above). Moreover, it cannot be said that at the date of lodging his application the first applicant had reason to believe that domestic remedies would shortly be exhausted. On the contrary, he lodged his application to this Court only one month after he was convicted of murder (10 June 2010 – see paragraph 39 above), and nearly two months before he filed his Note of Appeal against conviction and sentence (2 September 2010 – see paragraph 40 above).

72. However, almost six years have now passed since the first applicant lodged his application with the Court and, more importantly, more than two years have passed since the domestic remedies were in fact exhausted on 27 March 2014. Had the application been rejected for non-compliance with the rule on exhaustion of domestic remedies in the earlier stages of the present proceedings, the first applicant would have been able to submit a fresh application once domestic remedies had been exhausted. If the Court were now to declare his application inadmissible on this basis, he would, through no fault of his own, be deprived of the possibility of lodging a fresh application since his complaints would have become time-barred on 27 September 2014 (that is, six months after the date of the final domestic decision). The Court considers that applicants should not suffer a procedural injustice because of the manner in which it has dealt with their application. Therefore, given that the domestic remedies have indeed been exhausted in the meantime, it finds that the particular circumstances of this case justify treating it as an exception to the general rule that remedies are to be exhausted before bringing an application to this Court or, at the very least, shortly thereafter.

73. Consequently, the Court would dismiss the Government’s objection under Article 35 § 1 of the Convention.

2. Manifestly ill-founded

74. The Government submitted that the applicants’ complaint should be declared inadmissible under Article 35(3) on the ground that it is manifestly unfounded. They contended that regardless of when the time started to run for the purposes of Article 6 § 1, there had been no delay.

75. However, the Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

76. The applicants submitted that the length of the criminal proceedings had been in breach of the “reasonable-time” guarantee under Article 6 § 1 of the Convention.

77. The first applicant asserted that the proceedings had not been unduly complex and had not involved any difficult forensic or scientific work; that he had been under no obligation to assist the police in their investigation; and that he had raised the issue of delay in 2005, thereby putting the Crown on notice to properly arrange its affairs, which it effectively failed to do.

78. The second applicant argued that regardless of any complexity that might be identified, the proceedings in his case lasted for an excessive and unacceptable period. He also asserted that responsibility for the delay in prosecuting the case lay wholly with the State and that no period of delay could be attributed to him.

79. The Government submitted that the applicants’ complaint should be dismissed on the substantive merits for the following reasons.

80. The applicants stood charged with the murder of A.M. Both failed to accept their guilt or to assist the authorities with any investigation. Indeed the case against them had presented police with a challenging and complex enquiry, which was continually reviewed and saw numerous lines of enquiry pursued, leading to a gradual but significant development of the evidential landscape against the applicants. Furthermore, the main witness, the son of the deceased, suffered from profound psychological issues arising from sexual abuse suffered at the hands of the applicants, and it took some time for him to fully cooperate with the authorities in their investigation. It took the police from 1998 to 2005 to resolve the difficulties that these, and other, issues may have presented in any prosecution and to arrive at a point where they felt there was sufficient evidence in order to proceed against the applicants. After the applicants were charged with the murder of A.M. in 2005, it was a process of careful, reasoned analysis that resulted in the decision being taken not to prosecute at that time. However, further surveillance work undertaken by the police in 2007 and 2008 resolved the problems that had stood in the way of any prosecution in 2005. As soon as a decision was made to prosecute, an indictment was served, the Crown sought a retrospective extension of time within which to prosecute the applicants, and the case thereafter proceeded without delay.

81. The Government emphasised that both applicants were serial sexual offenders who had been sentenced to a number of periods of imprisonment between 1998 and 2010. In the circumstances, given the background to the murder of A.M., the procedural history of the case, and the applicants’ criminal records, the Government contended that should this Court find there to have been an unreasonable delay, the applicants were not significantly prejudiced by it.

2. The Court’s assessment

(a) The period to be taken into consideration

82. The period to be taken into consideration under Article 6 § 1 of the Convention must be determined autonomously. In criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged” and covers the whole of the proceedings in question, including appeal proceedings (see Neumeister v. Austria, 27 June 1968, p. 41, § 18, Series A no. 8). “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see, among other authorities, Deweer v. Belgium, 27 February 1980, §§ 42 & 46, Series A no. 35 and Eckle v. Germany, 15 July 1982, § 73, Series A no. 51).

83. In the present case it is common ground that the criminal proceedings brought against the two applicants ended with the final appeal decision, which was on 27 March 2014 for the first applicant and on 19 June 2014 for the second applicant (see paragraph 46 above). There is, however, a dispute among the parties as to the starting date for calculating the length of those proceedings.

84. The Government, relying on the reasons given by the Supreme Court in its judgment of 13 June 2013 (see paragraph 46 above), contended that the starting point for calculating the length of proceedings should be 5 April 2005, when the applicants appeared on petition at the Sheriff Court (see paragraph 16 above). However, both applicants asserted that the correct starting point was in fact 17 September 1998, that being the date when they were interviewed and accused by police officers of having murdered A.M. (see paragraph 10 above), so that the impugned criminal proceedings against them should be taken to have lasted well over fifteen years.

85. The Court, for its part, does not consider it necessary to resolve the disputed issue as to the starting date in the present case. First, even assuming, as the Government plead, that the period to be assessed is taken to have commenced on 5 April 2005, the Court is satisfied, as explained below, that the resulting overall length of the criminal proceedings cannot be regarded as compatible with the requirement of a “trial within a reasonable time” under Article 6 § 1 of the Convention. Secondly, a finding that the proceedings began on the earlier date proposed by the applicants would not have materially affected the Court’s overall conclusion, since the lapse of time between September 1998 and April 2005 was not the result of a lack of diligence on the part of the authorities. Consequently, the following reasoning of the Court in its examination of the applicants’ complaint under this head proceeds on the assumed basis that the period to be taken into consideration began on 5 April 2005. On this basis, the proceedings lasted almost nine years for the first applicant and just over nine years and two months for the second applicant.

(b) The reasonableness of the length of proceedings

86. The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case which call for an overall assessment (Boddaert v. Belgium, 12 October 1992, § 36, Series A no. 235‑D) and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II). On the latter point, what was at stake for the applicant has also to be taken into account (see, among many authorities, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 67, ECHR 2007‑II).

87. Generally speaking, it sits in conflict with the principles underlying a justice system governed by the rule of law that persons suspected of criminal offences should be kept in a prolonged state of uncertainty, with the threat of prosecution hanging over them for an unjustifiably protracted period before they are eventually charged and brought to trial. Nonetheless, given the public-policy issues at stake, prosecution for serious crimes such as murder, even some years after their commission, on the basis of progressively assembled or freshly discovered evidence is not in itself such as to raise an issue in relation to the State’s obligation under Article 6 § 1 to ensure a criminal trial within a reasonable time. That said, depending on the circumstances, a significant lapse of time between the commission of a suspected offence and the laying of a “criminal charge” within the meaning of Article 6 § 1 may be susceptible of bringing with it a need for heightened diligence in the conduct of the ensuing proceedings.

88. In the present case, the applicants were prosecuted for serious criminal offences of murder and perverting the course of justice, attracting a weighty sentence of imprisonment if convicted. Although they were not remanded in custody at any point during the relevant proceedings (compare, for example, the situation of the applicant in Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002‑VI), the Court accepts that what was at stake was significant.

89. With regard to the length of the proceedings, the Court notes that the disappearance of A.M. was reported to the police by her ex-husband in February 1998, although the disappearance itself probably dated back to June 1997 (see paragraphs 4, 5 and 19 above). Yet, on the working assumption being operated by the Court in the present case (see paragraph 87 above), the “charges”, within the autonomous meaning of Article 6 § 1 of the Convention, were not laid against the applicants until April 2005 (see paragraphs 15-16, 31, 33, 45 and 46 above). Thereafter, the proceedings lasted until 27 March 2014 for the first applicant and until 19 June 2014 for the second applicant (see paragraph 46 above). This duration – of some nine years – is long for criminal proceedings, particularly given the lapse of almost eight years between the commission of the suspected offence and the bringing of the “charges”. Such a long duration calls for convincing justification by the respondent State (see paragraph 87 above).

90. The Court must therefore give careful scrutiny to the question whether the competent domestic authorities exercised the necessary diligence when conducting the relevant criminal proceedings against the applicants. Consequently, it will examine the chronology of events throughout all phases of the criminal proceedings against the applicants in order to determine whether they received a “hearing ... within a reasonable time” in the determination of the criminal charges against them, as guaranteed by Article 6 § 1 of the Convention. Four distinct phases may be identified: notably pre-indictment (April 2005 – September 2008); indictment to trial (September 2008 – May 2010); trial (May – June 2010); and post-trial (June 2010 – June 2014).

91. With regard to the pre-indictment period from April 2005 till September 2008, which in itself is of such an unusual length as to call for explanation, a number of mitigating factors may be accepted as being present. To begin with, the case against the applicants was of undoubted complexity, not least owing to the number of people involved in the proceedings. It is to be noted that at the applicant’s trial the prosecution led evidence from over fifty witnesses (see paragraph 37 above). Furthermore, there were specific difficulties faced by the prosecution, including the disappearance of the supposed murder victim; the fact that her body was never recovered; the lack of forensic evidence linking the applicants to the crime; and the psychological problems suffered by the main witness, who was the son of the supposed victim and who had been sexually abused by the applicants (see paragraph 8 above), which inevitably impacted on his ability to cooperate with the prosecution. During the three and a half years from April 2005 to September 2008, the police were conducting a difficult exercise of building up an evidential case against the applicants and periodically reviewing the evidence. The delay of the prosecuting authorities in going ahead was not because of negligence but because of a careful and reasoned analysis that resulted in a decision not to prosecute until there was a sufficiency of evidence against both of the applicants, who were suspected of having acted together (see paragraph 20 above). Evidence obtained under the police Operation Aspen (see paragraphs 24-25 above) led to the Crown concluding on 9 September 2008 that there had been a material change as to the prospects of securing both applicants’ conviction (see paragraph 25 above). Indictment of the applicants followed swiftly on 10 September 2008.

92. In respect of the period between indictment and trial, which lasted some twenty months, the applicants lodged a number of motions designed to prevent their murder trial from taking place (see paragraphs 27-35 above). The Court reiterates that Article 6 does not require suspects and defendants to cooperate actively with the judicial authorities. Nor can they be blamed for making full use of the multiple remedies available to them under domestic law (see, among other authorities, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A, § 66). An applicant’s conduct does, however, constitute an objective fact which cannot be attributed to the respondent State and which must be taken into account in determining whether or not the length of the proceedings exceeds what is reasonable (Eckle v. Germany, § 82). In this respect, the many successive motions and appeals lodged by the applicants carried with them an inevitable delaying effect. On the other side of the equation, there was no identified undue delay on the part of the Scottish prosecuting or judicial authorities during this second period.

93. The third stage, namely the applicants’ trial, which took place between May and June 2010 (see paragraphs 37-39 above), was not in itself over-long and discloses no unwarranted delay.

94. The fourth, post-trial, period, which lasted from June 2010 until June 2014, comprised not only the applicants’ appeals against conviction and sentence, but also ancillary appeals including a direct Article 6 reasonable‑time point argued before the Appeal Court and then the Supreme Court (see paragraphs 40-46 above). As in the second phase of proceedings, these ancillary appeals had an unavoidable delaying effect. Nonetheless, this period of four years, which accounts for just under half of the total length of proceedings, does appear to be long for an appeal against conviction and sentence.

95. What is determinative for the assessment under Article 6 § 1 is whether or not the overall length of the proceedings, taken as a whole, can be regarded as excessive (see Dobbertin v. France, 25 February 1993, Series A no. 256‑D). Consequently, the Court has on occasion found the overall length of proceedings to be excessive, even though the individual periods of time appeared normal when viewed separately (see, for example, Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D).

96. In the present case, having fully considered the material before it, the Court considers that, although there are no specific incidents of outright dilatoriness attributable to the Scottish prosecuting and judicial authorities, there were certain stages of the proceedings which were protracted (most notably, the passage of almost four years from the date the applicants lodged their Notes of Appeal against conviction and sentence and the date those appeals were finally determined). Although the Court has accepted that the applicants’ own actions greatly contributed to that delay, in view of the need for diligence triggered by the significant lapses of time both between the commission of the offence and the laying of charges, and between the laying of charges and the applicants’ conviction becoming final, the Court considers that the overall length of the proceedings (almost nine years in respect of the first applicant, and just over nine years and two months for the second applicant – see paragraphs 16, 46 and 90 above) was excessive and failed to meet the reasonable-time requirement.

97. There has accordingly been a breach of Article 6 § 1.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

98. The applicants further complained under Article 6 § 1 of the Convention about the alleged unfairness of their trial following such a prolonged delay.

99. Neither applicant has substantiated this claim. Furthermore, this complaint was examined and rejected by the domestic courts which determined that the case against the applicants was a strong one and that any delay did not cause them material prejudice (see paragraph 41 in fine above).

100. Consequently, the Court does not consider that the facts of the present case are capable of giving rise to an issue of unfairness under Article 6 § 1. The applicants’ complaints are therefore manifestly ill‑founded and fall to be rejected as inadmissible under Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

101. 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. Damages

102. The first applicant claimed 333,900 pounds sterling (GBP) in respect of pecuniary damage and 10,000 GBP in respect of non-pecuniary damage.

103. The second applicant claimed 10,000 GBP in respect of non‑pecuniary damage.

104. The Government contested the applicants’ claims for damage, finding them to be excessive and having no causal link between the damage claimed and the violation alleged. It submitted that, in the event that the Court found there to have been a violation of Article 6 § 1, such a finding would, in itself, constitute sufficient just satisfaction. In the alternative, only a modest award should be made.

105. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the first applicant’s claim.

106. The violation that the Court has found of the applicants’ right to trial within a reasonable time was not owing to culpable dilatoriness on the part of the Scottish prosecuting or judicial authorities, but because, when viewed as a whole, the length of the criminal proceedings in question was excessive. During this overall period found to be contrary to Article 6 § 1, the applicants engaged in the exercise of multiple avenues of recourse aimed at preventing their trial in the first place and thereafter at having their conviction overturned, which remedies included pursuing ancillary proceedings before the Supreme Court. In the special circumstances of the present case, the Court considers that the finding of a violation of Article 6 § 1 in itself constitutes adequate just satisfaction for the purposes of Article 41 of the Convention in respect of any possible non-pecuniary prejudice sustained by the applicants.

B. Costs and expenses

107. The applicants also claimed GBP 3,694 and GBP 10,000 respectively for the costs and expenses incurred before the Court.

108. The Government contested the applicants’ claims finding them to be excessive and there to be no basis for awarding legal expenses.

109. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Rule 60 of the Rules of Court further requires that an applicant submit itemised particulars of all claims, together with any relevant supporting documents. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 to the first applicant for costs and expenses in the proceedings before the Court. In respect of the second applicant, the Court notes that he has claimed GBP 10,000 but has failed to itemise this figure as required by Rule 60 (2) of the Rules of Court. The Court therefore rejects his claim for reimbursement of his costs and expenses.

C. Default interest

110. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Declares the complaints concerning the reasonable time guarantee under Article 6 § 1 admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention by reason of the overall duration of the relevant criminal proceedings brought against the applicants;

4. Holds that the finding of a violation of Article 6 § 1 of the Convention as above constitutes adequate just satisfaction for the purposes of Article 41 of the Convention in respect in any possible non-pecuniary prejudice sustained by the applicants;

5. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,500 (four thousand five hundred euros), inclusive of any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement; and

(b) 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposMirjana Lazarova Trajkovska
RegistrarPresident

Full & Egal Universal Law Academy