FIFTH SECTION

DECISION

Applications nos . 52054/08 and 52079/08 Stephen BIRNEY against Ireland and John TROY and P a trick BRENNAN against Ireland

The European Court of Human Rights (Fifth Section), sitting on 10 January 2012 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Mark Villiger , Ann Power-Forde , Ganna Yudkivska , André Potocki , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application s lodged on 5 and 9 September 2008 , respectively,

Having deliberated, decides as follows:

THE FACTS

The first, second and third applicants, Mr Stephen Birney, Mr John Troy and Mr Patrick Brennan, are Irish nationals . They were born in 1974, 1980 and 1964, respectively , and they live in Dublin . The first applicant was represented before the Court by Mr Conway O ’ Hara, a solicitor practising in County Wicklow . The second and third applicants were represented before the Court by Ms C. Almond, a solicitor with Garrett Sheehan and Partners , Dublin . The facts of the case, as submitted by the applicants , may be summarised as follows.

At 21.51 on 12 October 2002 the applicants were re- arrested pursuant to s ection 4(3) of the Criminal Law Act 1997 with a view to being taken to the Special Criminal Court (“SCC”) and charged with membership of the IRA. In the morning of 13 October 2002 they were brought before the SCC and charged: the period prior to charging was later calculated by the Supreme Court to be almost 13 ½ hours. They applied for and were refused bail and remanded in custody on a number of occasions (including on consent) until finally remanded for trial to begin on 9 December 2004. The applicants did not object to the jurisdiction of the SCC during their initial appearance or during the subsequent two-year remand period.

In the meantime (in April 2004), Mr O ’ Brien was arrested and brought before the SCC to be charged with membership of the IRA arising out of the same events to which the charges against the applicants related. He immediately challenged the jurisdiction of the SCC (prior to his arraignment) arguing that, since he had not been brought “forthwith” before the SCC, he had not therefore been “lawfully brought” before the SCC so that the SCC did not have jurisdiction to try him. Consequently, the present applicants also objected to the jurisdiction of the SCC to try them. Their objection was joined with that of Mr O ’ Brien. Following a hearing on 13 December, the SCC rejected those objections on 14 December 2004.

On the same day, the applicants ’ trial began. It lasted some weeks and the applicants were convicted. On 12 May 2006 the Court of Criminal Appeal (CCA) refused leave to appeal, that court having examined and rejected the “forthwith” jurisdiction argument.

In the meantime, Mr. O ’ Brien had requested and obtained leave to apply for judicial review pending which his trial was adjourned. While the High Court refused leave, on 24 October 2007 the Supreme Court accepted his appeal ( O ’ Brien v. The SCC and Another , [2007] IESC 45) finding that he had not been brought “forthwith” (approximately 16 hours) before the SCC, that he was not therefore lawfully before the SCC and that the SCC did not therefore have jurisdiction to try him.

Two weeks later the applicants took habeas corpus proceedings (Article 40(4)(2) of the Constitution) relying on the Supreme Court judgment in the O ’ Brien case arguing that, since the SCC had had no jurisdiction to try them, their imprisonment was unlawful. They sought release.

On 9 November 2007 the High Court rejected their application: while their cases were identical to Mr O ’ Brien ’ s and while the SCC clearly did not have jurisdiction in their cases, their right to raise that issue was spent since they had not objected to the jurisdiction of the SCC at the earliest opportunity before it (prior to arraignment) and they had not explained why.

By an ex tempore judgment of 5 December 2007 (the written judgment was delivered on 12 March 2008, Brennan and Others v. the Governor of Portla o ise Prison and Another [2008] IESC 12), the Supreme Court rejected the applicants ’ appeal. Since an application had not been made under section 29 of the Courts of Justice Act 1924 (for a certificate that the case concerned a point of law of exceptional public importance requiring examination by the Supreme Court ), the decision of the CCA on the jurisdiction point had become final and was res judicata . A habeas corpus action did not lie when the jurisdictional issue had already been determined to the point of statutory finality: the principle of finality would be subverted if habeas corpus could be used as a perpetual right of post-conviction appeal . The court did acknowledge that that there might be exceptional cases where a fundamental jurisdictional defect could be established in a habeas corpus action which defect, through nobody ’ s fault, had not been raised in the appeal processes. However, the present applicants could have raised an objection to the jurisdiction of the SCC earlier in the process, as in the O ’ Brien case, but they had failed to do so. On the contrary, they applied for and were refused bail and remanded in custody including on a consent order. They neither applied for judicial review nor for an adjournment of the trial pending same. Having permitted their trial to proceed, after unsuccessfully raising the jurisdictional point before the CCA, they could have, but did not, apply for a certificate under section 29 of the 1924 Act. The Supreme Court confirmed that, if Mr O ’ Brien had not objected to jurisdiction early and brought judicial review proceedings, his trial would have been joined with the trial of the applicants.

COMPLAINTS

The applicants complain ed under Article 5 § 1 (a) that they were serving a sentence of a trial court which had no jurisdiction to try them and under Article 5 § 4 that they were refused a review of the legality of that detention.

THE LAW

The applicants complain ed under 5 § 1 (a) and 5 § 4 that the SCC did not have jurisdiction to try them and that they could not challenge the unlawfulness of their sentence through a habeas corpus application.

The Court recalls the requirement to exhaust domestic remedies as detailed in its decision in D. v. Ireland and, notably, that an applicant must exhaust all effective remedies which are available in theory and in practice namely, those which are accessible, capable of providing relevant redress and offer reasonable prospects of success (26499/02, 27 June 2006, § 83).

The Supreme Court rejected the applicants ’ habeas corpus proceedings in which they challenged the jurisdiction of the SCC and the lawfulness of their imprisonment. The Supreme Court did so because their conviction had already become final with the judgment of the CCA and should not be re-opened by using habeas corpus as a free-standing perpetual appeal. Importantly, the Supreme Court also pointed out that the applicants could have avoided the finality of their conviction by, inter alia , an early objection to the jurisdiction of the SCC followed by, if necessary, judicial review proceedings for which their trial would have been adjourned.

The Court considers that this step identified by the Supreme Court constituted an accessible remedy capable of providing relevant redress and offering reasonable prospects of success as regards the applicants ’ concerns about the jurisdiction of the SCC. Mr O ’ Brien was charged with the same charge as the applicants arising out of the same facts and he contested the jurisdiction of the SCC on the basis of, inter alia , concerns similar to those of the applicants (the time it took to be brought before the SCC) after which he successfully pursued judicial review proceedings for which his trial had been adjourned. The present applicants, who were legally represented, neither pursued this option nor pointed to any particular factor which leaned against or prevented them from doing so.

Moreover, the Court considers persuasive the reasons for rejecting a habeas corpus action as a further remedy. The Supreme Court sought to avoid transforming habeas corpus into a perpetual post-trial appeal in the interests of the finality of judgments and the principle of legal certainty. This latter principle is considered by this Court to constitute one of the fundamental aspects of the rule of law , of which the finality of judgments is one facet. In addition, since the applicants had available to them the above-described earlier remedy, it cannot be said that there were circumstances of a substantial and compelling character which would have required a departure from that principle of legal certainty ( mutatis mutandis , Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII ; Ryabykh v. Russia , no. 52854/99, § Note 52, ECHR 2003–X; and, more recently, Zheltyakov v. Ukraine , no. 4994/04 , § 43 , 9 June 2011 ).

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of a failure to exhaust domestic remedies.

It is not therefore necessary to examine whether the other procedure identified by the Supreme Court as capable of preventing the judgment of the CCA from becoming final (na application under section 29 of the Courts of Justice Act 1924 ) could be considered to be an effective remedy in the particular circumstances of the present case.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President