FIFTH SECTION
DECISION
Application no. 75116/12
Patrick Joseph ENRIGHT
against Ireland
The European Court of Human Rights (Fifth Section), sitting on 30 September 2014 as a Committee composed of:
Ganna Yudkivska, President,
Ann Power-Forde,
André Potocki, judges
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 14 November 2012,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Patrick Joseph Enright, is an Irish national, who was born in 1960 and lives in Castleisland, Co. Kerry.
This is the second application brought by the applicant in relation to criminal proceedings against him that commenced with his arrest on suspicion of fraud in 1994. The first application (no. 61138/08) was struck out by the Court on 21 June 2011 following a friendly settlement between the parties. The Court refers to that decision for a description of the facts of the case until that point in time.
The terms of the settlement declarations were as follows:
For the applicant:
“I, Padraig Cullinane, BL, note that the Government of Ireland are prepared to pay ex gratia to Mr Patrick Joseph Enright, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 9,500 euros, inclusive of pecuniary and non-pecuniary damages as well as of costs and expenses, plus any tax that may be chargeable to the applicant.
This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Ireland in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”
For the Government:
“I, Peter White, Co-Agent of the Government of Ireland, declare that the Government of Ireland offer to pay, ex gratia to Mr Patrick Joseph Enright, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 9,500 euros, inclusive of pecuniary and non-pecuniary damages as well as of costs and expenses, plus any tax that may be chargeable to the applicant.
This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
In February 2011, the Director of Public Prosecutions confirmed the intention to continue with the prosecution of the applicant. In April 2011, the applicant sought leave for the second time to bring judicial review proceedings to prevent the trial, on account of the overall delay. The High Court rejected his application in July 2011. The applicant then appealed to the Supreme Court, which rejected his appeal on 4 October 2012. The Supreme Court observed that by the terms of the friendly settlement the applicant had waived any further claims against Ireland arising out of the delay encountered to that date. The applicant was due to be tried on 26 February 2013; he failed to reply to a request from the Registry as to the further proceedings.
COMPLAINTS
The applicant complained under Articles 6 and 13 of the Convention of excessive delay in the criminal proceedings against him, and of the lack of an effective domestic remedy for this. He further complained under Articles 6, 13 and 14 of the Convention as well as Article 1 of Protocol No. 1 of the fact that the costs of the judicial review proceedings were awarded against him and that he was refused legal aid in those proceedings.
THE LAW
A. Duration of proceedings and effective remedy
The applicant complained under Article 6 that his trial had not taken place within a reasonable time, and under Article 13 that he had no remedy in domestic law for this violation.
Article 6 provides, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 provides:
“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.”
The applicant referred to the entire duration of the criminal proceedings against him which, at the time of introducing this application, spanned a period of some eighteen years. In view of the express terms of the friendly settlement between the applicant and the Government in 2011, however, the applicant may not now rely on any fact that gave rise to his previous application. Accordingly, the starting date for present purposes cannot be earlier than the date of the Court’s decision on that case, 21 June 2011. The duration of the proceedings from that date until the date of his trial was just over twenty months. In examining the reasonableness of this period, the Court will have regard in particular to the conduct of the applicant and of the competent authorities (see, among other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court observes that after he had agreed the terms of the friendly settlement with the State, the applicant instituted another round of judicial review proceedings seeking to prevent his trial taking place. The necessary consequence of this was the stay of the criminal process for the duration of the judicial review proceedings. This took from April 2011 until the Supreme Court’s decision of 4 October 2012. The Court observes that while he was entitled to make use of his procedural rights, the applicant must bear the consequences of the resultant delay (see McFarlane v. Ireland [GC], no. 31333/06, § 148, 10 September 2010). The Court does not discern any undue delay in the conduct of the judicial review proceedings, which lasted eighteen months before two levels of jurisdiction. Once these had concluded, the criminal proceedings resumed, leading to the applicant’s trial just under five months later. The complaint as to the length of the proceedings is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. As to the complaint that the applicant did not have an effective remedy in respect of that length, the Court has found that the substantive claim is manifestly ill founded. It also finds that the substantive claim is not arguable within the meaning of the Court’s case-law (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The complaint under Article 13 is therefore also manifestly ill-founded, and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicant’s other complaints
The applicant made a number of other complaints, relying on Articles 6, 13 and 14 of the Convention and Article 1 of Protocol 1. He complained that the costs of the first judicial review proceedings had been awarded against him, and that the office of the Director of Public Prosecutions had sought payment of the amount. He also complained that he had not been granted legal aid for either set of judicial review proceedings. He requested that the Court grant him an order for his costs against the State in relation to the second judicial review proceedings, and claimed that it would be both discriminatory and a violation of right to the peaceful enjoyment of his possessions if he were required to pay such costs.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy