Information Note on the Court’s case-law No. 133
August-September 2010
McFarlane v. Ireland [GC] - 31333/06
Judgment 10.9.2010 [GC]
Article 13
Effective remedy
Lack of effective remedy to claim damages for delays in criminal proceedings: violation
Facts – In January 1998 the applicant, who had just been released from prison in Northern Ireland, was arrested by Irish police in connection with a kidnapping that had taken place in December 1983. He was charged with various offences, some carrying a life sentence, and released on conditional bail. He subsequently made two applications for an order prohibiting his prosecution on the grounds that his right to a fair trial had been irretrievably prejudiced both by the loss of original fingerprint evidence and by delays in the proceedings. In the first application, the Supreme Court ruled in 2006 that the loss of fingerprint evidence was not prejudicial as the forensic report had been preserved and that it had been entirely legitimate for the Irish police to have waited for the applicant’s release from prison before arresting him. In the second application, in which the applicant had argued that delays since his arrest had violated his constitutional right to a trial with reasonable expedition, the Supreme Court noted, inter alia, that the only specific relief the applicant had sought was an order prohibiting the trial, and that, even assuming a breach of his constitutional right to an expeditious hearing, the circumstances had not warranted an order preventing his continued prosecution. The applicant had not claimed damages and it was not the Supreme Court’s role to pronounce in the abstract on the availability of damages as a remedy. During the course of the criminal proceedings, the applicant was required to report once a month to a police station some eighty kilometres from his home in Belfast and to attend the Special Criminal Court in Dublin (a round trip of approximately 320 kilometres) on some forty occasions. The proceedings ended in June 2008 with the applicant’s acquittal.
Law – Article 13 in conjunction with Article 6 § 1: The Court did not find effective any of the domestic remedies that had been proposed by the Government. There was significant uncertainty as to the availability of the principal remedy they proposed, namely an action for damages for breach of the constitutional right to reasonable expedition. While that remedy had been available in theory for almost twenty-five years, it had never been invoked and recent dicta of the domestic courts indicated that its availability in practice remained an open question. That situation was to be distinguished from the time which the Court’s jurisprudence accorded to allow a new and specifically adopted remedy for delay to be tested. 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. Moreover, as no specific and streamlined procedures had been developed for the proposed remedy, 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 presenting, at least initially, some legal novelty. This entailed two consequences that were also liable to undermine the effectiveness of the remedy: firstly, the time such proceedings were likely to take (possibly several years) and, secondly, potentially high legal costs and expenses.
As to the remaining remedies proposed by the Government, an action in damages under the European Convention on Human Rights Act 2003 would be ineffective since, inter alia, it appeared that any delay attributable to “the courts” was not actionable under that Act and, in any event, the Act (which was not retroactive) had not entered into force until 31 December 2003, by which time the applicant’s proceedings had been pending for almost six years. An application for a prohibition order by reason of prejudice and real risk of unfair trial could, in principle, be an effective remedy for a complaint about delay causing potential unfairness at trial but, having regard to the additional balancing exercise inherent in prohibition proceedings due to delay, it could not constitute an effective remedy for a complaint of unreasonable delay within the meaning of Article 6 § 1.
In sum, the Government had not demonstrated the existence of effective remedies available to the applicant in theory and practice at the relevant time.
Conclusion: violation (twelve votes to five).
Article 6 § 1: The criminal proceedings against the applicant had lasted over ten and a half years, from his arrest in January 1998 to his acquittal in June 2008. Although his conduct had contributed to the delays, it did not explain the overall length of the proceedings. The Government had not provided convincing explanations for certain delays attributable to the authorities, who had been under a particular obligation to expedite matters in view of the fact that the criminal proceedings had not started until well after the alleged offences had taken place. Nor was it relevant here that the applicant might have been able to apply for an order expediting the proceedings, as that did not exempt the courts from their duty to ensure that the reasonable-time requirement was complied with. The applicant had borne the weight of what were serious charges carrying heavy sentences for the duration of the proceedings, during which time he had also had reporting obligations and been required to attend court in Dublin. In these circumstances, the overall length of the criminal proceedings had been excessive.
Conclusion: violation (twelve votes to five).
Article 41: EUR 5,500 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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