Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21624/93

by Patrick O'REILLY

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to the application introduced on 24 September 1992

by Patrick O'REILLY against Ireland and registered on 6 April 1993

under file No. 21624/93;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

5 April 1994 and the observations in reply submitted by the

applicant on 3 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows.

The applicant is an Irish citizen born in 1957 and is currently

serving a sentence of imprisonment at Cork Prison. He is represented

before the Commission by Mr. Noel Forde, a solicitor practising in East

Cork.

A. Particular circumstances of the case

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.

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.

On 25 January 1985 the applicant was released on bail.

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.

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.

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.

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.

On 25 and 26 February 1986 the Supreme Court heard the appeal of

the D.P.P.. It was the first ever appeal against an acquittal but 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. The issues of law before the Supreme

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

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.

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.

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 replying submissions 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.

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.

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.

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.

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.

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

16 November 1989 the applicant was found guilty and was sentenced to

8 years imprisonment.

By notice dated 8 December 1989 the applicant appealed his

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.

There is a conflict on the facts in respect of the next

developments in the case.

The Government claim that the applicant's solicitor was not

contactable "for some considerable time" after February 1991

resulting in the applicant's Books of Appeal not being delivered

until October 1991 when they should have been delivered by

February 1991.

The applicant submits that his solicitor contacted the Supreme

Court office prior to March 1991 in order to let that office know

his new address as the applicant's solicitor had moved his

practice. The applicant further submits that his solicitor became

aware of the availability of the C.C.C.'s transcript in March

1991 and was informed by the Supreme Court office that further

documentation would be required for the appeal. It is further

confirmed by the applicant that the applicant's paperwork for the

appeal was in order by July 1991 at which time the applicant

realised that an amendment was required to the Notice of Appeal.

Due to the court vacation (August and September) the relevant

application for leave to amend could not be made until October

1991 at which time the applicant's application to amend his

Notice of Appeal was successful. The applicant's Books of Appeal

were delivered shortly thereafter in October 1991.

The case appeared in the Supreme Court list from September 1991

awaiting a hearing date.

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 raised before the C.C.C. and the Supreme Court in the

hearings 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 judges findings on the

admissibility of the applicant's alleged statement and the directions

given to the jury by the trial judge.

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

by the Supreme Court and rejected.

During the period of the above hearings the applicant was

detained from the date of his arrest, 19 November 1984, to

25 January 1985 when he was released on bail. He was again detained for

four days during the C.C.C. trial in December 1985. He was not detained

again until his conviction on the burglary charge in November 1989 and

he remains in prison to date.

B. Relevant domestic law and practice

Separation of Proceedings.

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

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

in Ireland.

Prior to 1924 it was not possible to combine any charges on 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 on the same indictment. Subsequently, the Supreme Court,

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

be joined with murder.

This ruling of the Supreme Court meant that when the application

was made in 1985 by the D.P.P. to separate both sets of proceedings the

court had the option of granting the separation or not. The application

of the D.P.P. was made in order to relieve the defence, the jury and

the prosecution from the additional burden imposed by the less serious

charge of burglary in order to allow those persons to concentrate on

the murder charge.

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."

COMPLAINTS

The applicant complains that the length of the proceedings

against him exceeded the reasonable time requirement provided for in

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applicant's solicitor wrote to the Commission, by letter

dated 24 September 1992, requesting an application form in respect of

a sentence of imprisonment which had been imposed on the applicant and

in respect of which the applicant claimed a violation of his human

rights. Subsequently the Commission received, by fax, on

28 January 1993 the relevant facts in detail together with a list of

the applicant's complaints including a general complaint under Article

6 of the Convention. The completed application form was received by the

Commission on the 29 March 1993 and was registered under No. 21624/93

on 6 April 1993.

On 11 January 1994, the Commission declared inadmissible part of

the application and decided to communicate the question concerning

length of proceedings under Article 6 para. 1 of the Convention to the

respondent Government and to ask for written observations on the

admissibility and merits of this question.

The Government's observations were submitted on 5 April 1994

after one extension in the time-limit fixed for this purpose, and the

applicants' observations in reply were submitted on 3 June 1994, also

after one extension in the time-limit.

On 17 May 1994, the Commission decided to grant legal aid to the

applicant.

THE LAW

The applicant complains about the length of criminal proceedings

against him under Article 6 para. 1 (Art. 6-1) of the Convention.

The Government raise various arguments against the admissibility

of the applicant's complaint and on the merits.

Article 26 (Art. 26) of the Convention.

The Government argue that the applicant's initial letter of the

24 September 1992 did not constitute an application to the Commission

but rather a request for an application form and that the more detailed

second letter of the applicant, dated 27 January 1993, was received by

the Commission on 3 February 1993. Thus the Government submits that the

applicant failed to introduce his application within the six month time

limit imposed by Article 26 (Art. 26) of the Convention.

The Commission notes that it does not have to deal with the

question of the status of the letter of 24 September 1992 because the

detailed letter outlining the facts of the case and the broad

complaints of the applicant (dated 27 January 1993) was received by fax

on 28 January 1993. Thus the Commission finds that the application was

introduced at the latest on the 28 January 1993 which was within six

months of the final decision, given on 30 July 1992, when the Supreme

Court delivered its judgment on the applicant's appeal against

sentence.

No specific complaint made by the applicant under Article 6 para. 1

(Art. 6-1) of the Convention.

The Government submit that no specific complaint was made as to

the length of proceedings, or indeed under Article 6 para. 1 (Art. 6-1)

of the Convention, in the applicant's initial letters or in the

application form submitted by the applicant. The Government also argue

that even if the Commission can consider issues other than those raised

by the applicant then it must do so within six months of the date of

the final decision. It is therefore contended by the Government that

the decision by the Commission to deal with the issue under Article 6

para. 1 (Art. 6-1) of the Convention is inconsistent with Articles 25

and 26 (Art. 25, 26) of the Convention.

The Commission recalls that it may examine whether or not the

facts submitted disclose a violation of the Convention even if the

applicant has not complained about an issue directly (Eur. Court H.R.

Neumeister judgment of 27 June 1968, Series A no. 8, p. 41 para. 16).

In addition the Commission recalls, that in the performance of its

tasks, it is free to attribute to the facts of the case, as found to

be established on the evidence before them, a characterisation in law

different from that given by the applicant or, if need be, to view the

facts in a different manner (Eur. Court H.R., Foti judgment of

10 December 1982, Series A no. 52. p. 15, para. 44).

In this regard the Commission notes that the fax received on 28

January 1993, within the six month time limit, set out the relevant

facts concerning the criminal proceedings against the applicant in some

detail and made a general claim in relation to Article 6 (Art. 6) of

the Convention. The Commission therefore finds that it may examine

whether the proceedings against the applicant disclose a violation of

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

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as it is

relevant, reads as follows:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law...."

The criminal proceedings against the applicant, which commenced

on 13 December 1984 and terminated with the judgment of the Supreme

Court of 30 July 1992, lasted in total over 7 years and 7 months.

The applicant contends that the length of time in question cannot

be regarded as reasonable. The Government submit that the proceedings

did not, in all the circumstances, exceed a reasonable period of time

having regard in particular to the exceptional complexity and

importance of the substantive and procedural issues which arose in both

sets of proceedings and to the conduct of the applicant in those

proceedings.

According to the constant case-law of the Convention organs the

reasonableness of the length of proceedings under Article 6 para. 1

(Art. 6-1) of the Convention has to be assessed in each case in light

of the particular circumstances of the case and by applying the

following criteria: the complexity of the issues in the case, the

conduct of the applicant and the conduct of the competent authorities.

Applying these criteria, and having regard to the circumstances

of the case as they have been submitted by the parties, the Commission

considers that the complaint raises serious issues of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. The application cannot therefore be

regarded as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

No other ground for declaring the application inadmissible has

been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE without

prejudging the merits.

Secretary to the First Chamber President of the first Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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O'REILLY v. IRELAND

O'REILLY v. IRELAND

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