Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21624/93

Patrick O'Reilly

against

Ireland

REPORT OF THE COMMISSION

(adopted on 22 February 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-47) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-43). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 44-47). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 48-68) . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 48). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 49). . . . . . . . . . . . . . . . . . . . .7

C. As regards Article 6 para. 1 of the Convention

(paras. 50-67). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 68). . . . . . . . . . . . . . . . . . . . 10

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . 11

APPENDIX II: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 12

APPENDIX III: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Irish citizen, born in 1957 and has recently

been released from Cork prison. He was represented before the

Commission by Mr. Noel Forde.

3. The application is directed against Ireland. The respondent

Government were represented by Emer Kilcullen of the Department of

Foreign Affairs, Dublin.

4. The case concerns a complaint about the length of criminal

proceedings in respect of murder and burglary charges. The applicant

invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 24 September 1992 and

registered on 6 April 1993.

6. On 11 January 1994 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant's complaint under Article 6 para. 1 of the

Convention. The remainder of the application was declared inadmissible.

7. The Government's observations were submitted on 5 April 1994

after one extension of the time-limit fixed for this purpose. The

applicant replied on 3 June 1994 also after one extension of the

time-limit. On 17 May 1994, the Commission (First Chamber) granted the

applicant legal aid for the representation of his case.

8. On 31 August 1994 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 12 September 1994 and they were invited to submit

such further information or observations on the merits as they wished.

The Government submitted observations on 26 October 1994, to which the

applicant replied on 12 December 1994.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. C.L. ROZAKIS, President

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

12. The text of this Report was adopted on 22 February 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The facts agreed between the parties may be summarised as

follows:

The applicant is an Irish citizen, born in 1957 and has recently

been released from Cork prison. He is represented before the Commission

by Mr. Noel Forde, a solicitor practising in East Cork.

17. On 12 December 1984, the applicant was arrested pursuant to

section 30 of the Offences Against the State Act, 1939 ("the 1939

Act"), on suspicion of having committed a scheduled offence under the

1939 Act. The applicant made a statement while in custody admitting his

participation in the crime.

18. On 13 December 1984 and on 18 January 1985, the applicant was

charged with burglary and murder respectively, both of which charges

arose out of the same event.

19. On 25 January 1985 the applicant was granted bail but he was

unable to satisfy the bail terms and remained in detention on remand.

20. On or about 24 April 1985, the Book of Evidence, in respect of

both charges, was served on the applicant and a number of witness

statements were taken on deposition in May 1985.

21. In June 1985, the case was pronounced ready for trial and the

applicant was returned for trial to the Central Criminal Court ("the

C.C.C."). In July 1985, the applicant's trial date was fixed by the

C.C.C. for 2 December 1985.

22. In August 1985, having had his bail terms reduced on a number of

occasions by the High Court, the applicant was in a position to satisfy

the bail terms and he was released on bail.

23. On 29 November 1985 the Director of Public Prosecutions

("D.P.P."), applied for and obtained an order separating the murder and

burglary proceedings and the trial of the burglary charge was

adjourned. Counsel for the applicant did not oppose the separation of

the two proceedings nor the consequent adjournment of the trial on the

burglary charge.

1. The Murder Proceedings.

24. On 2 December 1985, at the trial in the C.C.C., the applicant

successfully challenged the admissibility of the statement made by him

while in custody. The statement was ruled inadmissible on the basis

that the power of arrest and detention given pursuant to section 30 of

the 1939 Act applied only to offences with a subversive element which

was not present in the particular circumstances of the case. Since the

D.P.P. had no other evidence against the applicant the judge directed

the jury to record a verdict of not guilty of murder and the applicant

was discharged.

25. Although the D.P.P. had never before appealed such an acquittal,

the D.P.P. lodged an appeal to the Supreme Court against the

applicant's acquittal by the C.C.C. because the judgment of the C.C.C.

(as it then stood) would have had a large impact on police powers of

arrest and on others arrested and detained pursuant to Section 30 of

the 1939 Act. On 25 and 26 February 1986 the Supreme Court heard the

appeal of the D.P.P.. The issues of law before the Supreme Court on

this occasion were similar to those dealt with in the C.C.C..

26. On 25 July 1986 the Supreme Court delivered its judgment,

reversing the trial judge's ruling, holding that section 30 applied to

any offence scheduled in the 1939 Act whether or not motivated by any

subversive intent.

27. On 16 December 1986, pursuant to that reversal, the D.P.P.

sought, by Notice of Motion to the Supreme Court, liberty to re-try the

applicant on the murder charge. This was the first ever application to

direct the re-trial of a person on a murder charge.

28. On 3 February 1987, the written submissions of the D.P.P. were

delivered. Pursuant to an application by the D.P.P. on 4 June 1987, the

applicant delivered his submissions in reply on or about the

17 June 1987. The issues before the Supreme Court this time included

questions as to whether the Supreme Court could order a re-trial under

the rules of the courts or pursuant to a particular statutory

provision. The constitutionality of the aforementioned statutory

provision was also in issue.

29. On 21 July 1987 the Supreme Court hearing on the application to

re-try the applicant took place. On 29 July 1988 the Supreme Court

refused the motion to re-try the applicant.

2. The Burglary Proceedings.

30. The applicant's trial for burglary had been adjourned from time

to time since November 1985 while the murder proceedings were in

progress. The applicant did not object to such adjournments nor apply

to have the burglary trial proceeded with.

31. On the 4 October 1988 the matter came before the C.C.C. for

mention, for the first time since the conclusion of the proceedings in

respect of the murder charge, when it was adjourned "by consent" of

both parties. The trial was subsequently adjourned twice "by consent"

of both parties until 17 April 1989 when a trial date was fixed for

20 May 1989.

32. On the 1 May 1989 the D.P.P. applied for, and the applicant

opposed, another adjournment. The adjournment was granted and the trial

was fixed for hearing on 27 June 1989. On the trial date the case was

adjourned until the following day, when the D.P.P. applied for, and the

applicant consented to, another adjournment for several weeks due to

the sudden illness of a prosecution witness.

33. The trial eventually commenced on the 31 October 1989. The

applicant was found guilty on 16 November 1989 and on 17 November 1989

he was sentenced to 8 years imprisonment and began his sentence.

34. By notice dated 8 December 1989 the applicant appealed against

conviction. However it took until February 1991 before the necessary

transcript of evidence of the burglary trial was received and approved

by the trial judge.

35. On 21 February 1991 the Supreme Court Office informed the

applicant's solicitor that the transcript (being approximately

2000 pages) had to be collected as it was too bulky to post and it was

so collected in March 1991.

36. Counsel's advice, received by the applicant's solicitor in June

1991, advised on the List of Documents to be filed for the appeal and

that the appeal to the Supreme Court should be amended to include an

appeal against sentence. The List of Documents was filed on

15 July 1991. Although it was possible for both the existing appeal

against conviction and the proposed appeal against sentence to be filed

and heard separately, the applicant's solicitor decided to await the

outcome of the necessary application to the High Court (for leave to

amend the appeal) prior to lodging the final Books of Appeal so that

both appeals could be heard together.

37. The courts were on annual vacation during August and

September 1991.

38. There is a conflict on the facts in respect of some developments

during February 1991 to October 1991. This conflict relates to the

Government's claim that the applicant was responsible for unnecessary

delay during this period and specifically involves the contactability

of the applicant's solicitor between February and October 1991.

The Government submit that the applicant's solicitor rendered

himself uncontactable by the Supreme Court for some considerable

time and gave six different telephone numbers "over the period"

to the Supreme Court Office.

The applicant submits that the reason the Supreme Court office

had various telephone numbers was because his solicitor had

worked in three law firms during the course of the murder

proceedings and the burglary trial. In addition, during the

period between the burglary conviction and the appeal hearing,

the applicant's solicitor was not working in a law firm, was

seeking employment and working from home. Therefore, in his

contacts with the Supreme Court Office, the applicant's solicitor

had given the applicable telephone numbers (including home

telephone numbers) in accordance with the above-described working

circumstances.

39. The case appeared in the Supreme Court list from September 1991

awaiting a hearing date. The application for leave to amend the appeal,

heard in October 1991, was successful and the applicant's finalised

Books of Appeal were filed in October 1991.

40. On 11 and 12 February 1992 the applicant's appeal against

conviction on the burglary charge was heard by the Supreme Court and

judgment was given against him on 14 July 1992. There was a wide range

of issues before the Supreme Court on this occasion (as was the case

during the trial in the C.C.C. on the burglary charge) including the

constitutionality of Section 30 of the 1939 Act, the length of the

proceedings, the separation of the two charges, the trial judge's

findings on the admissibility of the applicant's alleged statement and

the directions given to the jury by the trial judge.

41. On 30 July 1992 the applicant's appeal against sentence was heard

by the Supreme Court and rejected.

42. Due to the applicant's good behaviour while in prison, he

commenced temporary release on 14 June 1994 and he was released on

30 November 1994.

43. During the period of the above-mentioned proceedings, the

applicant was detained from 12 December 1984 (his arrest) to August

1985 (his release on bail). He was detained for four days during the

C.C.C. trial in December 1985. The applicant then served his sentence

for burglary from 17 November 1989 to 30 November 1994.

B. Relevant domestic law and practice

Separation of Proceedings.

44. In 1985, the possibility of including a number of charges (one

being murder) in the same indictment was a relatively recent phenomenon

in Ireland.

45. Prior to 1924 it was not possible to combine any charges in the

same indictment regardless of the nature of the charges. The Criminal

Justice (Administration) Act, 1924 made it possible to combine a number

of charges, however, a murder charge could still not be combined with

another charge in the same indictment. Subsequently, the Supreme Court,

held in 1977 that it was possible ("not improper") for other counts to

be joined with murder.

46. This ruling of the Supreme Court meant that when the application

was made in 1985 by the Director of Public Prosecutions to separate the

two sets of proceedings the court had the option of ordering the

separation or not. One of the objectives of separating charges in this

manner is to relieve the defence, the jury and the prosecution of the

additional burden imposed by a less serious charge to allow those

parties concentrate on, for example, a murder charge.

47. The issue of the separation of the two charges was raised by the

applicant as a ground of appeal to the Supreme Court in the burglary

proceedings. Finlay C.J. noted in this regard:

"No opposition to this separation of the two counts on the

indictment was made on behalf of this Appellant in December 1985.

There are strong grounds of policy to be found in a number of

decisions in favour of not trying with the charge of murder a

count of other crimes arising out of the same transaction even

though that is not an inflexible or mandatory prohibition. No

grounds have been advanced which in my view would suggest that

the decision to separate the counts on that occasion was in any

way unfair to the Appellant."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

48. The Commission has declared admissible the applicant's complaint

about the length of the criminal proceedings against the applicant.

B. Point at issue

49. The only point at issue is whether the length of the burglary

proceedings against the applicant exceeded the "reasonable time"

referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

50. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"In the determination ... of any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by [a] tribunal...".

1. The period to be taken into consideration

51. The period to be taken into consideration began with the

applicant's arrest on 12 December 1984 and ended with the dismissal of

the applicant's appeal against sentence on 30 July 1992. The period

under consideration is therefore 7 years 7 months and 18 days.

2. Reasonableness of the length of the proceedings

52. The Commission refers to its constant jurisprudence in this

field:

"The reasonableness of the length of the proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities ..."

(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series

A no. 218, p. 27, para. 60).

(a) Complexity of the case

53. The Government submit that the issues before the courts were of

such legal complexity, novelty and importance in domestic law terms so

as to justify the length of the proceedings.

54. However, the Commission notes that the proceedings were neither

administratively complex (namely, there were relatively few parties,

witnesses and documents) nor factually complex. Furthermore, the

Commission considers that the importance of the proceedings against the

applicant in the general context of domestic law can not justify

significant delays in those proceedings. In addition, while the

Commission accepts that the complexity of the legal issues may have

contributed to the length of the actual hearings and justified some

delay in delivering the judgments, the Commission considers that the

actual hearings were not the source of the delays in these proceedings

and that the delays experienced by the applicant in receiving the

judgments in this matter were not justified by the nature of the legal

issues involved.

(b) The applicant's conduct

55. The Government argue that the applicant's conduct, in a number

of respects, contributed to the length of the proceedings.

56. In the first place, the Government argue that the applicant did

not oppose the application of the D.P.P. to separate the murder and

burglary proceedings nor (with one exception) the consequent

adjournments of the burglary proceedings.

57. However, the Commission notes that both the application for the

separation of the two sets of proceedings (November 1985) and that for

an adjournment of the burglary trial (in June 1989) were applied for

by the D.P.P.. In addition, it appears that the three subsequent

adjournments of the burglary proceedings (between 4 October 1988 and

17 April 1989) were not proposed by the applicant and in any event were

consented to by the D.P.P. It is further noted by the Commission that

the subsequent adjournment of the burglary proceedings (1 May 1989) was

opposed by the applicant.

58. Secondly, the Government argue that the applicant raised new

issues during the burglary proceedings in relation to the 1939 Act and

the admissibility of the confession made by him, which matters could

have been raised by him during the murder trial. In this regard, the

Commission recalls that the applicant was entitled to make full use of

the remedies available to him under domestic law (Eur. Court H.R.,

Eckle judgment of 15 July 1982, Series A no. 51, p. 36, para. 82) and

in any event, considers that the Government has not demonstrated that

the raising of these issues contributed to the overall length of the

proceedings.

59. Thirdly, the Government submit that the applicant delayed in

complying with certain filing requirements. The Government submit that

on 17 June 1987 the applicant filed written submissions, in relation

to the murder charge, 5 months after the D.P.P., the D.P.P. having

appeared before the Supreme Court in order to compel the applicant to

do so. The Commission considers that this delay did not of itself

significantly contribute to the overall length of the proceedings,

particularly in view of the fact that the relevant Supreme Court

hearing took place approximately one month after the delivery of the

applicant's written submissions.

60. In this regard the Government also make detailed submissions to

the effect that the applicant should have filed Books of Appeal in

February 1991 whereas they were not filed until October 1991. The

applicant, disputes this contention referring, inter alia, to his

solicitors difficult working circumstances at the time, the need to

amend the notice of appeal and to obtain court approval for this and

his wish to have both the original appeal (against conviction) and the

amendment (which introduced an appeal against sentence) heard together.

61. The Commission notes the conflict between the parties on the

facts in respect of the contactability of the applicant's solicitor

during this period. However, this issue aside, it is not disputed that

the transcript of the burglary trial was not approved by the trial

judge until February 1991. In addition, the Commission considers that

the applicant was entitled to make use of all remedies available under

domestic law (see the above-mentioned Eckle judgment) including

amending his appeal and ensuring that both the appeal against

conviction and sentence were heard together. Moreover, the domestic

courts were on vacation during August and September 1991 and it was

necessary to obtain leave from the High Court to amend the notice of

appeal shortly after which the finalised Books of Appeal were filed.

In any event, the case was in the Supreme Court list, awaiting a

hearing date, from September 1991. In the above circumstances, the

Commission does not consider that any delay on the part of the

applicant during this period contributed significantly to the overall

length of the proceedings.

(c) Conduct of the competent authorities.

62. It is submitted by the Government that, in view of the complexity

and novelty of the legal issues and the multiplicity of hearings before

the C.C.C. and Supreme Court, the conduct of the competent authorities

was more than reasonable. Furthermore, the Government note that the

applicant spent relatively little time in detention during the murder

trial and was finally imprisoned only when convicted in November 1989.

It is also pointed out by the Government that the Supreme Court was

available to hear each application within a very reasonable period of

time.

63. The applicant submits in this regard that he was in detention

from his arrest in December 1984 to August 1985 when he was finally in

a position to satisfy the bail terms. While he was subsequently at

liberty until November 1989 (apart from a number of days in December

1985) he suffered mental anguish in view of the protracted nature of

the proceedings.

64. The Commission recalls that the competent authorities bear

primary responsibility for ensuring the speedy determination of

proceedings, even where the applicant uses all procedural steps

available under domestic law (cf. No 9132/80, Dec.12.12.83, D.R. 41

p. 13). Moreover in the present case, the Commission considers that

this responsibility is particularly onerous in respect of all

proceedings which followed the application made by the D.P.P. to

separate the murder and burglary proceedings, because of the potential

impact of that separation on the length of the proceedings. The

Commission has considered the conduct of the competent authorities, in

light of these criteria and the submissions of the parties, and finds

that the following delays, which are attributable to the competent

authorities, are not convincingly explained by the Government.

65. The Commission notes that the Supreme Court took 5 months from

the date of the hearing to deliver its judgment on the appeal against

acquittal on the murder charge (26 February 1986 to 25 July 1986). It

then took the D.P.P. almost 5 months after delivery of that judgment

to enter the application to re-try the applicant on the murder charge

(25 July 1986 to 16 December 1986).

66. Subsequently, the Supreme Court took 12 months from the date of

the hearing to deliver its judgment on the application made by the

D.P.P. to re-try the applicant (21 July 1987 to 29 July 1988). The

Commission is particularly struck by the fact that it then took

14 months for the C.C.C. trial judge to approve the transcript of

evidence presented at the burglary trial which transcript was necessary

for the preparation and hearing of the appeal (8 December 1989 to

February 1991). Finally, the Supreme Court took 5 months to deliver its

judgment on the applicant's appeal against conviction on the burglary

charge (12 February 1992 to 14 July 1992).

67. In light of the criteria and circumstances of the case described

above, the Commission considers that the length of the burglary

proceedings in this case, being over 7 years and 7 months, has not been

convincingly justified by the Government. Consequently the Commission

finds that the reasonable time referred to in article 6 para. 1 of the

Convention has been exceeded.

CONCLUSION

68. The Commission concludes, by 8 votes to 1, that in the present

case there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

24.9.92 Introduction of application.

6.4.93 Registration of application.

Examination of admissibility

11.1.94 Commission's decision (First Chamber)

to communicate the complaint under

Article 6 para. 1 of the Convention

to the respondent Government, to

invite the parties to submit

observations on admissibility and

merits and to declare the remainder

of the application inadmissible.

5.4.94 Government's observations.

17.5.94 Commission's grant of legal aid.

3.6.94 Applicant's observations in reply.

31.8.94 Commission's decision to declare the

application admissible and the

provisional vote on violation.

Examination of the merits

12.9.94 Decision on admissibility transmitted

to parties. Invitation to parties to

submit further observations on the

merits.

26.10.94 Government's observations.

12.12.94 Applicant's observations.

17.1.95 Commission's consideration of state

of proceedings

22.2.95 Commission's deliberations on the

merits, final vote and adoption of

the Report.

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O'REILLY v. IRELAND

O'REILLY v. IRELAND

LEXI