NASH v. IRELAND

FIFTH SECTION

DECISION

Application no. 1882/18
Mark NASH
against Ireland

The European Court of Human Rights (Fifth Section), sitting on 17 March 2020 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having regard to the above application lodged on 4 January 2018,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Mark Nash, is a British national, who was born in 1973 and is currently serving a life sentence for murder in Midlands Prison, Portlaoise, County Laois.

2.  The applicant was represented by Mr J. MacGuill, a solicitor practising in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr P. White.

3.  On 28 August 2018, notice of the applicant’s complaints regarding length of criminal proceedings and the lack of an effective remedy was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  On 7 September 2018, in accordance with Article 36 § 1 of the Convention and Rule 44(1)(a) of the Rules of Court, the Government of the United Kingdom were invited to submit written comments; however, they did not exercise their right to intervene (Rule 44(1)(b)).The circumstances of the caseBackground

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

6.  On 17 August 1997, while in custody on other matters, the applicant voluntarily made a voluntary and unprompted admission in relation to the murders of two women, S.S. and M.C., at St. Brendan’s Hospital, Grangegorman on 6 March 1997 (“the Grangegorman murders”). The victims, who had a history of psychiatric illness, were living in a house on hospital grounds as part of a community based facility. At that time, another person, D.L., was in custody having also made admissions in respect of the Grangegorman murders.

7.  On 18 August 1997, an Garda Síochána (the Irish police) took possession of items of clothing and footwear belonging to the applicant. Those items were sent to the forensic science laboratory, Forensic Science Ireland (“FSI”), for forensic assessment. DNA testing was carried out in 1998 and 2002 which confirmed the presence of DNA but did not yield an identifiable source.

8.  On 1 September 1997, the applicant retracted his admissions.

9.  In April 1998, D.L. was excluded as a suspect in the investigation.

10.  On 1 July 1998, an Garda Síochána recommended that the applicant be charged with the Grangegorman murders. Thereafter, on 1 September 1999, the Director of Public Prosecutions (“the DPP”) directed that the applicant should be charged with the murders but that the charges should not be preferred until after the completion of the Book of Evidence (statement of the evidence on which the prosecution proposed to rely) so that it could be served at the same time. The decision to charge the applicant was subsequently revoked in order to utilise the newly enacted section 42 of the Criminal Justice Act 1999, which permitted the applicant, who remained in custody on the other matters, to be arrested and interviewed for the purpose of investigating the Grangegorman murders.

11.  D.L. died on 12 September 2000.

12.  On 30 November 2000, the DPP directed that the applicant should not be charged with the murders. Evidential difficulties, including the death of D.L., were pivotal in that decision. During the next nine years, forensic testing, and a number of cold-case reviews took place.

13.  In July and August 2009, due to the availability of new technology, the applicant’s jacket, and its buttons and threads, were re-tested by FSI. DNA matching the victims was identified. Consequent upon the discovery of that evidence, in October 2009 the applicant was formally charged for the first time with the murders of S.S. and M.C. and remanded for trial.

14.  The applicant unsuccessfully brought proceedings aimed at prohibiting the criminal trial (see paragraphs 16-24 below).

15.  Following a nine week trial by jury, on 20 April 2015 the applicant was convicted of the murders of S.S. and M.C. and sentenced to imprisonment for life. That conviction was upheld by the Court of Appeal by judgment delivered on 8 May 2018 (see Director of Public Prosecutions v. Nash [2018] IECA 147).The domestic proceedingsThe application to restrain the prosecution

16.  In March 2010, the applicant obtained leave to issue judicial review proceedings (“the prohibition proceedings”) seeking, inter alia, an order restraining the DPP from prosecuting him in respect of the Grangegorman murders on grounds of the inordinate and inexcusable delay in the prosecution and the associated risk of an unfair trial (Nash v. Director of Public Prosecutions, Record No. 2010 35 JR) (see also paragraph 26 below).

(a)   The High Court

17.  In its judgment delivered on 10 August 2012, the High Court noted that it is well settled that the right of an accused person to a trial in due course of law, under Article 38.1 of the Irish Constitution, is a solemn one entitling him to basic principles of justice that are inherent in the proper course of the exercise of the judicial function and that this constitutional right ranks above the entitlement of the community to have serious criminality prosecuted to due conclusion, where a conflict between those rights arises (see Nash v. Director of Public Prosecutions [2012] IEHC 359).

18.  The High Court acknowledged that the delay in prosecuting the applicant was undoubtedly lengthy and necessarily bound to render any ultimate trial less satisfactory than had it proceeded earlier but it had regard to the explanations advanced by the prosecution, and to determinations of the Superior Courts in delay cases, and formed the view that the delay in itself was not such as to preclude it from allowing the trial to proceed. In that regard, the High Court had noted the inactivity in the case was not the prosecution’s wish but a rather a belief, on reasonable grounds, that in the circumstances of the two sets of admissions and the death of D.L., they were unable, in the absence of acquiring significant forensic evidence implicating the applicant, to progress the case.

19.  On balance, the High Court held that, notwithstanding the delay and its consequences, plus much publicity, those matters were not such as to preclude a fair trial. It found that the issues raised, which were outweighed by the public interest in having issues of guilt or innocence in a double murder determined in due course of law, could be fairly addressed by rulings and directions of the trial judge to the jury.

(b)   The Supreme Court

20.  The applicant appealed against the rejection of his application to restrain the proceedings to the Supreme Court. By judgment delivered on 29 January 2015, that court found that an applicant for prohibition must establish a real risk of an unfair trial within a context where the unfairness alleged cannot be avoided by appropriate rulings and directions on the part of the trial judge, i.e., that real risk must be demonstrated as unavoidable.

21.  The Supreme Court considered that it was difficult to disagree with the case made on behalf of the prosecuting authorities that, without the new forensic DNA evidence, it was reasonable not to prosecute the applicant. Moreover, it noted that the prosecution moved quickly to charge the applicant once the enhanced testing DNA evidence emerged.

22.  The Supreme Court was satisfied that it was by no means clear that there had been any significant culpable delay on the part of the prosecuting authorities, although it left the final decision on that issue to the trial judge. Likewise, the Supreme Court was satisfied that the extent to which the applicant would be truly impaired in the presentation of his defence by reason of any additional lapse of time attributable to culpable delay was by no means clear. The Court noted that questions of the admissibility of evidence, the overall fairness of the trial, the adequacy of disclosure, the proper selection of jurors and what warnings may need to be given to the jury were matters for the trial judge.

23.  When subsequently dismissing the applicant’s appeal against his conviction, the Court of Appeal looked at those directions in detail and noted, at paragraph 148, that:

“(i)n general terms, this lengthy and complex trial was conducted by a very experienced criminal trial judge in a careful, indeed exemplary, fashion and was, again in general terms, in the strong view of this Court, an entirely fair trial which produced a verdict well justified by the evidence.”

24.  The Supreme Court stated that, in order for it to be constitutionally required to prohibit the trial, it is necessary that the real extent of any departure from the ideal of a perfect trial be sufficiently significant, and the culpability of the prosecuting authorities so serious, that their combined effect is sufficient to disturb the important constitutional value in determining, by full trial on the merits, the guilt or innocence of persons accused of crime. This was not the sort of clear case where the courts should intervene to prohibit a trial in advance. For those reasons, the Supreme Court upheld the decision of the High Court and dismissed the appeal.Conclusions of the Court of Appeal in the criminal proceedings

25.  On 20 April 2015, the applicant was convicted of the Grangegorman murders. He appealed against the convictions. By judgment delivered on 8 May 2018 the Court of Appeal dismissed the appeal (see Director of Public Prosecutions v. Nash, cited above). The Court of Appeal noted the trial had been lengthy and complex, stretching over four months in 2015. It stated:

“The complexity of the trial was in no limited way the consequence of the unusual manner in which the appellant became involved in the investigation of the crime, and in circumstances where he was not a suspect nor is it likely he would have become a suspect but for his own admissions, later retracted, of involvement made after his arrest for a completely unrelated but almost as brutal murder of a County Roscommon couple and a near fatal assault on his then girlfriend. A further complicating factor was the involvement of the original suspect, [D.L.], who himself made what transpired to be false admissions to the Grangegorman Murders and who died in the year 2000 following his release from a U.K. prison having served a custodial sentence there for a non-related matter.

The trial itself saw many issues requiring voir dires [a trial within a trial to determine the admissibility of evidence] and rulings by the learned trial judge. Many of those in turn became the subject of grounds of appeal before this Court and were the subject of detailed oral submissions over a period of four days, and which submissions the Court found most helpful. The various appeal grounds have been considered in detail in the main body of this judgment, including, and in particular, those grounds identified by [senior counsel for the applicant] at the opening of the appeal as constituting what he described as the “main planks” of the appeal. They were the issues relating to the admissions made by the appellant and the scientific / forensic evidence. Neither those grounds, nor indeed any of the other grounds of appeal, have been upheld by this Court and accordingly we must dismiss the appeal. (see paragraphs 145-147)”The application for damages

26.  In the prohibition proceedings, the applicant also sought ancillary relief by way of damages for alleged breach of his right to trial with due expedition under the Irish Constitution and the European Convention on Human Rights Act 2003 (hereafter “the 2003 Act”). That issue was the subject of separate consideration, and the following separate judgments, by the domestic courts.

(a)   The High Court

27.  In the High Court, the applicant submitted that the question as to whether damages would be available as an alternative remedy to prohibition in a case where it was sought for breach of the right to a timely trial was open. In that regard, he referred to the expert legal opinion submitted to this Court in McFarlane v. Ireland [GC], no. 31333/06, 10 September 2010 relying on which the State had argued that it was “highly probable” that an accused could sue successfully for damages for such a breach (see McFarlane v. Ireland, cited above, §§ 84-87).

28.  On the facts of the applicant’s case, the DPP submitted, inter alia, that his claim for damages for the alleged breach of his rights was unsustainable in the first instance, given that there had been no finding of a breach of his constitutional or Convention rights in the prohibition proceedings. An award of damages could therefore not be made for a breach of those rights.

29.  By judgment delivered on 17 December 2012, the High Court recalled that, in the prohibition proceedings, the High Court did not make any finding of a breach of either the Constitution or the Convention (see Nash v. Director of Public Prosecutions [2012] IEHC 598). While the detrimental impact of the “substantial delay” in the case was acknowledged, it had been deemed to be not so unreasonable as to give rise to the granting of an injunction restraining the applicant’s trial. That being so, the Court decided that it was not necessary to engage in a detailed analysis of the applicant’s right to claim damages for the breach of his rights and refused the relief sought.

(b)   The Supreme Court on damages

30.  The applicant appealed to the Supreme Court. By judgment delivered on 24 October 2016 (“the damages judgment”), that court considered the question of whether it is possible in principle, and was appropriate in the particular circumstances of the applicant’s case, to award damages to an accused in a criminal trial as a result of a significant delay in the criminal process (see Nash v. Director of Public Prosecutions [2016] IESC 60). It stated that the question arose both in respect of the right to a timely trial guaranteed by the Convention and by the Irish Constitution.

31.  The Supreme Court emphasised that “at least at the level of general principle, it is clear that damages may be available for the breach of a right to a timely trial under either the [2003 Act] or the Constitution”.

32.  As regards the Constitution, the Supreme Court acknowledged that it clearly recognises the right to a timely trial and that such a right has been recognised by the Irish courts for some time. It stated that it has been established that there is, at least in principle and in some circumstances, an entitlement to damages for breach of the constitutional right to a timely trial. However, it considered “some of the complex issues which will need to be resolved in order that the precise parameters of any such claims may be defined” (see further paragraphs 5.4-5.6 of the judgment of Clarke J.). According to the Supreme Court, “(m)any, if not most, of those issues will be at least in part specific to the facts of the case in question. It would not, in those circumstances, be appropriate to attempt to define those parameters with any precision outside the context of the facts of a particular case”.

33.  Having confirmed that a constitutional right to damages could be established, it turned to the specific facts of the applicant’s case finding that there was no evidence of any significant and material prosecutorial delay in the bringing of the prosecution against the applicant. It found that the DPP was entitled to consider it inappropriate to prosecute the applicant at an earlier stage, given his reasonable view that there would have been little or no prospect of success. In addition, the Supreme Court found that there was no suggestion of any delay on the part of the State, or State authorities, for which the State was responsible in the period after the applicant was charged with the offences.

34.  The Supreme Court stated that it would leave it to a case in which culpable delay was established to reach a definitive conclusion on relevant parameters to the jurisdiction to award damages either under the 2003 Act or the Constitution.

(c)   The Supreme Court on whether the rectify the damages judgment

35.  Following the delivery of the damages judgment on 24 October 2016 (see paragraphs 30-34), the applicant applied to the Supreme Court seeking to re-visit the judgment in light of factual errors allegedly contained therein. The form and content of the application were unusual and were commented on as follows by the Supreme Court (O’Donnell J.):

“The application [...] becomes a generalised request for such order as the court may think appropriate. [...] There was [...] a surprising lack of precision about both the factual matters relied on, and the legal framework for analysis.”

36.  At best, the Supreme Court approached the notice of motion lodged by the applicant’s legal representatives after the judgment of 24 October 2016 as an “application to revisit [a] final order of this Court”.

37.  The applicant argued that three errors of fact where contained in the judgment of 24 October 2016. Two alleged errors related to the use of the word “samples” in paragraphs 3.10 and 3.11 of the judgment: a statement that the original samples taken were tested to destruction and were no longer available, and a suggestion that no samples were retained by FSI during the period between the initial testing and the testing which ultimately yielded the link between the applicant and the victims of the Grangegorman murders. The third alleged factual error related to the time at which more advanced DNA testing techniques, which enabled the testing of much smaller particles of DNA, became available.

38.  The Supreme Court handed down its judgment on the question of rectification on 13 July 2017 (see Nash v. Director of Public Prosecutions [2017] IESC 51). Regarding the first alleged error, the Supreme Court (Clarke J.) did not accept that an error had occurred. The reasons for this were provided in paragraphs 4.1-4.4 of his judgment.

39.  Regarding the second alleged error, the Supreme Court accepted that the judgment of 24 October 2016 contained a factual inaccuracy regarding the location of a button and thread (ibid, paragraph 4.5).

40.  Regarding the third alleged error, the Supreme Court accepted that the description of the timing of the advancement in forensic testing in the original damages judgment was inaccurate (ibid, paragraphs 5.1-5.4).

41.  The Supreme Court (judgment of Clarke J.) continued:

“5.5  Having therefore identified two matters in the judgment which were not fully accurate, I am more than happy that the correct positions be recorded both in respect of the location of the button and thread during the period between the initial investigation and the final examination, and also the timing of the availability of the relevant technology.”

42.  The Supreme Court then considered whether the two factual corrections required any change to the overall assessment reached in the damages judgment. Regarding the first factual correction, the Supreme Court (O’Donnell J.) stated:

“... I am strongly of the view that the correction to the facts surrounding the location of the button and thread during the relevant period could have no material effect on the overall assessment of culpability... It is impossible to see that it made any difference in practice that some of the materials which ultimately yielded results were, for the relevant period, in the custody of the forensic science laboratory as opposed to being held as potential evidence by An Garda Síochána... in the context of any questions of delay, that is a difference which is wholly immaterial.”

43.  Regarding the second factual correction, the Supreme Court, in acknowledging that the relevant DNA testing technology became available one year earlier than described in the October 2016 damages judgment, stated that it was important to recall the ultimate reasoning behind the finding of lack of culpable delay in the damages judgment. While it may have been possible, in theory, to test the samples one year earlier, the Supreme Court (Clarke J.) stated:

“... none of that takes away from the fact that this was a cold case and that there was no particular reason why any of the investigating gardaí could have expected that there was a particular likelihood that further testing, in the light of improved technology, might yield results [...] There is, in the common law system, no legal formality as to when an investigation can be said to have commenced or be closed. Legal formality only arises in the context of the gathering of evidence by compulsion (including the arrest of persons for questioning) or by persons being formally charged with offences. But at all other times crimes are simply potentially under investigation and every such case which may have gone cold cannot realistically be the subject of constant review. It was that analysis which led to the conclusion of no culpable delay in the damages judgment. I do not see how, in the light of that reasoning, the fact that technology might have been available a little earlier in Dublin and for a longer period elsewhere, affects that assessment.”

44.  The Supreme Court (O’Donnell J.) then went on to consider the legal basis for setting aside a judgment of the Supreme Court in light of the errors of fact identified. It recalled:

“The core and irreducible function of any court, even in cases with obvious and profound general consequences, is to resolve the issues between the parties to the litigation. The facts must be ascertained and recounted, not to provide an authoritative record of information to future generations, but to identify the issues between the parties which has given rise to the dispute...

In fairness too, although there is an established jurisdiction to set aside a judgment, it is rarely invoked and even more rarely leads to the setting aside of an order and although the court receives occasional requests to address and clarify a factual matter contained in a judgment, that too is rare.”

45.  The Supreme Court observed that it is a measure of the exceptional nature of the jurisdiction to set aside a final order of the Supreme Court that, since it was originally identified in Re Greendale Developments Ltd (No.3) [2000] 2 IR 514 (see paragraph 54 below), the jurisdiction has only been exercised on one occasion (see Abbeydrive Developments Ltd v. Kildare County Council [2010] 2 IR 397).

46.  The Supreme Court stated that the jurisdiction has been aptly described as “potential” in circumstances where “an applicant is obliged to show cogent and substantive grounds which are objectively sufficient to enable the court to enter upon the exercise of wholly exceptional jurisdiction.” In that regard, it noted that there was a lack of clarity as to what the applicant contended should follow from the clarification of the errors identified in the judgment.

47.  The Supreme Court (O’Donnell J.) was of the view that the inclusion of the factual errors in the damages judgment did not bring it near the high threshold required to be met in order for the Supreme Court to set aside a final judgment. It stated:

“[...] there could be no basis on which it is said that the matters identified, properly analysed and fairly understood could approach the high threshold which is necessarily required for this court to consider setting aside a judgment it has delivered. Insomuch as there are errors of description in the narrative of the judgment, I agree that the opportunity should be taken to correct the judgment in that regard. However, those are matters which could plainly have been dealt with in correspondence and by agreement if indeed it was considered that this was a case in which it was necessary to address such matters” (emphasis added).

48.  The Supreme Court therefore dismissed the application.Relevant domestic law and practiceEuropean Convention on Human Rights Act 2003

49.  Section 3 of the 2003 Act provides:

“(1)  Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2)  A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.

(3)  The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the limit of that Court’s jurisdiction in tort.

(4)  Nothing in this section shall be construed as creating a criminal offence.

(5)  (a)  Proceedings under this section shall not be brought in respect of any contravention of subsection (1) which arose more than 1 year before the commencement of the proceedings.

(b)  The period referred to in paragraph (a) may be extended by order made by the Court if it considers it appropriate to do so in the interests of justice.”Rules of the Superior Courts

50.  Order 36, rule 38 of the Rules of the Superior Courts 1986 provides:

“The Judge may, at or after a trial, direct that judgement be entered for any or either party, or adjourn the case for further consideration before him. No judgement shall be entered after a trial without the order of the Judge.”

51.  Order 41, rule 6 provides:

“(1)  Particulars of every judgment or order of the High Court shall be entered in proper books to be kept for that purpose and the judgment or order shall be filed in the Central Office.

(2)  Every judgment or order of the Court of Appeal shall be filed in the Office of the Registrar of the Court of Appeal.

(3)  Every judgment or order of the Supreme Court shall be filed in the Office of the Registrar of the Supreme Court.

(4)  Every judgment or order pronounced or made by the High Court, by the Court of Appeal or by the Supreme Court when so filed shall be deemed for all purposes to be duly entered, and the entry thereof shall be dated as of the day on which the judgment or order was pronounced or made, unless the Court otherwise directs.”Finality of judgments of the Supreme Court under the Constitution

52.  Article 34.5.6o of the Irish Constitution provides that the decision of the Supreme Court shall in all cases be final and conclusive. In Re Woods’ Application [1970) IR 154, Walsh J. stated that “there shall be no appeal available in any court from the particular decision (of the Supreme Court)”.

53.  Judgments of the Supreme Court can be amended to correct clerical errors. Order 28, rule 11, commonly referred to as the “slip rule”, provides:

“(c)lerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected without an appeal.”

54.  Save in cases falling under the slip rule, the jurisdiction of the Supreme Court to set aside, rescind or vary a final order is limited to highly exceptional circumstances, such as breach of constitutional rights or fair procedures (see Re Greendale Developments Ltd (No.3) [2000] 2 IR 514 and Bula Ltd v. Tara Ltd [2000] 4 IR 412). In Re Greendale Developments Ltd (No.3) (cited above) the Supreme Court stated:

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”

55.  In order to avail of the jurisdiction, an application must patently and substantively concern an issue of constitutional justice and the grounds of the application must clearly demonstrate that there is a substantive issue concerning a denial of justice in the proceedings in question (see DPP v. McKevitt [2009] IESC 29).

COMPLAINTS

56.  The applicant complained under Article 6 § 1 of the Convention that the period of twelve years which elapsed between him first being questioned in respect of the Grangegorman murders and the decision to formally charge him following the discovery of new evidence which resulted from the availability of enhanced DNA testing breached his right to a trial within a reasonable time. The applicant also complained that the failure to award him damages in respect of the delay breached his right to an effective remedy under Article 13 of the Convention.

THE LAWThe parties’ submissions

57.  The Government raised an objection to the application on the grounds that it was made outside the six month period from the date of the final domestic judgment. Specifically, they argued that the final domestic judgment in the matter was handed down on 24 October 2016. The Government acknowledged that the applicant subsequently applied to the Supreme Court to revisit the final judgment. However, the rectification of factual errors did not affect the findings of the final judgment of 24 October 2016 and made no difference to the result thereof. If it were the case that an applicant could apply to a court to rectify a judgment at any stage in order to re-start the six month period, that would subvert the purpose of the six month rule.

58.  The applicant accepted that judgment was delivered in the domestic proceedings on 24 October 2016 but claimed that it was not the final judgment and that no court order was drawn up at that time. His legal advisers immediately brought errors of fact contained in the judgment to the Supreme Court’s attention and sought its rectification. In the applicant’s view, it would not have been possible to pursue a complaint before this Court without first affording the domestic Court an opportunity to rectify the alleged factual errors in the original judgment.

59.  The applicant pointed out that the domestic court delivered further judgment on 31 July 2017 in which the errors of fact were acknowledged but without impact on that Court’s initial determination. He stated that it was only at that stage that the final order of the Supreme Court was drawn up.

60.  The applicant also stated that his appeal against his conviction, which had been rejected by the Court of Appeal on 8 May 2018, was finally rejected by the Supreme Court on 24 October 2018 by way of its refusal to grant leave to appeal thereto.The Court’s assessmentGeneral Principles

61.  Article 35 § 1 of the Convention states:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

62.  The relevant principles regarding the six month time limit were established by the Grand Chamber in Sabri Güneş v. Turkey [GC], no. 27396/06, § 39-42, 29 June 2012. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies (see, among other authorities, Danov v. Bulgaria, no. 56796/00, § 56, 26 October 2006).

63.  The six month time limit runs from the day following the date of the final decision in the process of exhaustion of domestic remedies (see Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). In that regard, the date of the final decision is the date on which the final decision is pronounced in public, or on which the applicant and/or his or her representative is informed of it. It is understood that this date is, in principle, that of the service of the decision, if it is provided for by domestic law, unless it is shown that the persons concerned have had knowledge of it before (see Koç et Tosun v. Turkie (dec.), No. 23852/04, §6, 13 November, 2008 and the cases referred to therein).

64.  The applicant must have made use of normal remedies which are likely to be effective and sufficient (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V (extracts) and O’Keeffe v. Ireland [GC], no. 35810/09, § 110-113, ECHR 2014 (extracts)). Thus, the pursuit of remedies which fall short of the above requirements will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002).Application of the general principles

65.  The present application was lodged with the Court on 4 January 2018. His complaints relate to the period of twelve years between his first being questioned as a suspect in the murders in 1997 and later being charged with the murders in 2009 following the discovery of new evidence which resulted from the availability of enhanced DNA testing. It was on the grounds of that delay that the applicant sought to prohibit his trial and obtain ancillary relief in the form of damages for breach of his constitutional right to a trial with reasonable expedition. The applicant has not complained about the length of the criminal proceedings from the date of charge in 2009 to his appeal against conviction ultimately being rejected by the Supreme Court in 2018. In those circumstances, the application concerns only alleged pre-trial prosecutorial delay.

66.  The Court observes that Irish domestic law stipulates that judgments of the Supreme Court are final and, as such, its decisions will only be re‑examined in highly exceptional circumstances (see paragraphs 50-54 above). The first Supreme Court damages judgment was delivered on 24 October 2016, more than 14 months prior to the application being lodged with this Court. It is therefore necessary to examine whether the decision of the Supreme Court of 13 July 2017, dismissing the applicant’s application to re-visit the final order of the Supreme Court, had the effect of interrupting or re-starting the running of the six-month time period.

67.  The Court notes that, following the delivery of the damages judgment, the applicant applied to the Supreme Court to re-visit it in light of the factual errors identified therein. However, the application was unclear as to what remedy was sought. It was the Supreme Court, not the applicant, which sought to properly frame the application and the legal framework in which it had to be assessed (see paragraphs 44-47 above). While the judgment of the Supreme Court, delivered on 31 July 2017, acceded to the correction of two factual errors in the text of the damages judgment, it did not alter its outcome in circumstances where it found that the application fell well short of the constitutional threshold for the setting aside of a final judgment. As a result, the applicant’s application to re-visit the damages judgment was dismissed by the Supreme Court.

68.  The interpretation of national law cannot be reviewed by this Court unless there is an indication that the domestic judge has drawn grossly unfair or arbitrary conclusions from the facts before him or her (see, mutatis mutandis, Önsipahioglu v. Turkey (dec.), no. 29861/96, 9 September 1998; Nemanova v. the Slovak Republic (dec), no. 32683/96, 14 January 1998). The Court is of the opinion that the extensive reasons on which the Supreme Court based its conclusions and dismissed the applicant’s application in its second judgment of 31 July 2017 are sufficient to exclude the possibility that the interpretation of domestic law was arbitrary.

69.  The Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months of decisions rejecting requests for the re-opening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Sapeyan v. Armenia, no. 35738/03, § 23, 13 January 2009; Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002).

70.  The Court also observes that, where proceedings are re-opened or a final decision is reviewed, the running of the six-month period will only be interrupted in relation to those Convention issues which served as a ground for the re-opening or review and were the subject of examination before the extraordinary appeal body (see Sapeyan v. Armenia, no. 35738/03, § 24, 13 January 2009). The factual errors at issue in the application to re-visit the damages judgment did not reach the necessary threshold under domestic law for a final order to be revisited and did not go to the core of the human rights issues subsequently raised before this Court. No Convention issues served as a ground for the application; nor did the applicant explain why the clarification of relatively minor facts which were the subject of ongoing criminal proceedings was necessary before the introduction of complaints before this Court relating to unreasonable delay and the absence of an effective remedy under Articles 6 and 13 of the Convention. Indeed, while the applicant may have wished to see any factual inaccuracies corrected, he must have been aware, given relevant domestic and Convention case-law, that the final decision in terms of the Conventions rights on which he sought to rely was the judgment of 24 October 2016. Consequently, the running of the six-month time limit cannot be considered to have re-started (see Schmidt v. Latvia, no. 22493/05, § 66-71, 27 April 2017).

71.  The applicant’s request to re-visit the damages judgment cannot be considered an effective remedy which he was required to pursue in order to comply with Article 35 § 1 of the Convention. As a result, the Court considers that the final decision in the relevant domestic proceedings was handed down on 24 October 2016, more than 14 months prior to the application to this Court being made (see paragraph 63 above).

72.  As regards the applicant’s argument that the start date for the running of the six-month rule is the date of perfection of the order reflecting the outcome of the judgment of 24 October 2016. That order was perfected on 24 July 2017.

73.  The Court notes that, in Ireland, judgments are delivered by being pronounced in court in the presence of the parties to the proceedings. In circumstances where Irish domestic law does not provide for the service of court judgments, the relevant date for the purpose of the six month rule is the date on which the judgment is pronounced in public by being delivered in court, that also being the date on which the applicant and/or his representatives have knowledge of the decision. It is not contested that the applicant and his legal representatives were informed of the Supreme Court judgment of 24 October 2016 on the date it was pronounced. In that regard, the Court does not consider the date upon which the order reflecting the final judgment was drawn up or perfected to be relevant for the purposes of calculating the starting point of the six-month rule.

74.  Accordingly, the applicant’s complaints, having been lodged with the Court more than six months after the last domestic decision, must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 April 2020.

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Victor SoloveytchikGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

Full & Egal Universal Law Academy