JOINT DISSENTING OPINION OF JUDGES GYULUMYAN, ZIEMELE, BIANKU AND POWER

The ' Uncertainty ' Argument

The ' Judicial Immunity ' Argument

The ' Duration ' and ' Costs ' Argument

DISSENTING OPINION OF JUDGE LÓPEZ GUERRA

I disagree with the majority ' s opinion. In my view, it does not reflect the meaning and importance of the principle of subsidiarity in the procedures before this Court.

General respect for human rights can be guaranteed only if they are effectively protected at the internal State level. In that regard, the role of the national authorities, and especially that of the domestic courts, is decisive and justifies the provision in Article 35 § 1 of the Convention to the effect that the Court “will only deal with the matter after all domestic remedies have been exhausted”. Any tendency of this Court to substitute itself for the national courts in this role will have undesirable effects, negatively affecting the national courts ' position as the common and natural defenders of human rights.

Certainly, one of the rights enshrined in Article 6 § 1 of the Convention is the right to trial without undue delay, and the Court has often stressed that effective remedies must be provided against excessively lengthy proceedings. These remedies can either be preventive (to avoid the undue prolongation of proceedings) or compensatory (to seek redress, if possible, for the consequences of undue delay).

In this case I have strong doubts as to whether the applicant exhausted all available compensatory remedies. He did indeed avail himself of the preventive remedies at his disposal (asking twice for a prohibition of the trial, based on the excessive length of the proceedings). However, he did not apply to an Irish court for any compensatory remedy by which he might have been awarded damages for the undue length of the criminal proceedings. In that regard, the Irish courts did not have (or were not given) the opportunity to render a judgment in this matter concerning possible financial compensation for the undue delay.

The present judgment deals with the question whether a reasonably available remedy existed in Irish law allowing for the possible award of compensation, and it reached the conclusion that such a remedy was not available. I am not convinced that such a remedy did not (or does not) exist. The applicant relies on the Court ' s Barry judgment to conclude that there was no effective domestic compensatory remedy for the alleged unreasonable length of the criminal proceedings. Whilst I believe that upholding the Court ' s own precedents is a guarantee of legal certainty, as well as a measure to ensure consistency in the Court ' s task of protecting the human rights set forth in the Convention, in my view the present case has certain peculiarities that distinguish it from Barry.

I do not doubt that the principle iura novit curia is also applicable , in general terms, to the proceedings before this Court. But, given the peculiar nature of such proceedings, which concern matters affecting all areas of law in a wide array of legal orders, the parties play an important role in providing information on the law in force in the internal legal order which may be relevant in their cases. Such collaboration aids the Court in its

decisions by providing it with better knowledge and understanding of the particularities of each system.

In the present case, I believe that the relevance of the information provided should have been taken into account. In Barry , as the Court recognises in the present judgment (paragraph 120), the Irish Government ' s submissions concerning the existence of a constitutional remedy for damages were “relatively brief”. By contrast, in the present case, the Government representation has extensively discharged its onus to justify its affirmation of the existence of such a remedy, accordingly providing a full-fledged Opinion by a renowned specialist on Irish constitutional law. In my view, the reasoning and arguments contained in that Opinion provide sufficient evidence of the existence of a constitutional action for damages in the Irish legal order, a remedy which should have been used by the applicant before turning to this Court.

The information presented by the Government, backed by extensive citations of Irish case-law, demonstrates that: (1) Article 38, paragraph 1, of the Irish Constitution, which establishes that “[n]o person shall be tried on any criminal charge save in due course of law”, likewise protects the right to an early trial; (2) it is a general principle of Irish law that the rights recognised in the Irish Constitution are protected against violation by legal actions; (3) according to the Opinion, in the Irish constitutional order there is now relatively well-developed case-law dealing with awards of damages for breaches of constitutional rights; (4) as a consequence, “it is plain therefore, that such an accused can sue the State (or its agents) for damages where his constitutional right to an early trial has been violated” (see paragraph 29 of the Opinion of Senior Counsel).

In my opinion, the argument that to date there has been no previous case in which damages were awarded for a violation of the right to an early trial does not mean that there is no remedy available for damages in this case. The Irish Government explained that the redress usually sought for this type of violation was the prohibition of trial, not damages. In fact no judgment denying damages for the violation of that right was provided as evidence of the impossibility of seeking damages by way of redress for undue delay.

In sum, it is my view that, on this occasion, the Irish Government have provided enough legal and case-law information for it to be reasonably concluded that a remedy for this situation exists in the Irish legal order – a remedy which the applicant should have used before bringing his claim to this Court. As a result, I would have preferred the Court to apply Article 35 § 1 of the Convention and declare the application inadmissible for non-exhaustion of domestic remedies. In addition, from the allegations of the parties (paragraph 73) it appears that the six-year limitation period in which to file a claim for damages for an alleged breach of constitutional rights had not yet expired, so this possibility still remained open to the applicant.

[1] CDL-AD(2006)036(rev) .

[2] CDL(2006)026 entitled “ Replies to the Questionnaire on the Study on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings ” .

[3] The State (O’Connel) v. Fawsitt [1986] IR 263.

[4] As noted by Fennelly J. in TH v. DPP, cited above, and by Fennelly J. in the Supreme Court (in the second prohibition action) in the present case.

[5] The State (Quinn) v. Ryan [1965] IR 70 (O’Dalaigh C.J., “the court’s powers were as ample as the defence of the Constitution requires”); Byrne v. Ireland [1972] IR 241 ( Walsh J., “Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce those must be deemed to be also available …”); and Meskill v. CIE [1973] IR 121 (Walsh J., “the constitutional right carried within, its own right to a remedy or for the enforcement of it”).

[6] Inter alia , Kearney v. Ireland [1986] IR 116 (prisoner’s right to communicate); Kennedy v. Ireland [1987] IR 587 (journalist’s right to privacy); Conway v. Irish National Teacher’s Association [1991] 2IR 305 (a right to free primary education); Healy v. Minister for Defence , High Court, 7 July 1994, unreported (right to fair (promotions) procedures); Walsh v. Ireland , Supreme Court 30 November 1994, unreported (right to liberty and good name); Sinnott v. Minister for Education [2001] 2IR 545 (right to adequate primary education); Gulyas v. Minister for Justice, Equality and Law R eform [2001] 3IR 216 (right to fair (immigration) procedures); and Redmond v Minister for the Environment (No. 2) [2006] 3IR 1 (electoral rights).

[7] O’Donoghue v. Legal Aid Board , cited above .

[8] see also T.H. v. DPP, cited above .

[9] [1998] 1IR 134.

[10] Redmond v Minister for the Environment (No. 2) , cited above, (a nominal sum of EUR 130 since there was no actual proof of loss).

[11] Conway v. Irish National Teacher’s Association , cited above, (a range of exemplary damages were awarded to children who missed school from IR£1500-IR£15.000).

[12] See Article 38.1 of the Constitution .

[13] See, in particular, the list of cases cited at footnote 6 of the Judgment.

[14] Kennedy v. Ireland [1987] IR 587; Sinnott v. Minister for Education [2001] 2IR 545; Gulyas v. Minister for Justice, Equality and Law Reform [2001] 3IR 216; O’Donoghue v. Legal Aid Board [2004] IEHC 413 ; Gray v. Minister for Justice [2007] IEHC 52; and Herrity v. Associated Newspapers [Ireland] Ltd [2008] IEHC 249

[15] See paragraph 62 of the Venice Commission’s Report where Ireland is listed as one the countries where both general and specific remedies are available.  Its finding in this regard is not limited to civil proceedings.  See also paragraph 72 of the Report where Ireland is identified as one of the countries where acceleratory remedies co-exist with compensatory ones for administrative proceedings. The ‘proceedings’ in respect of which the majority found delays that breached the ‘reasonable time’ requirement were, in fact, administrative proceedings (judicial review) which the applicant instituted in an attempt to prohibit his trial.

[16] Paroutis v Cyprus , no. 20435/02 , 19 January 2006 is also cited in § 120 as authority for the majority’s position “ even in the context of a common law inspired system with a written constitution’ .  This case is readily distinguishable in many respects not least by the absence of settled jurisprudence therein showing an established entitlement to damages against the State for breach of Constitutional rights.  By contrast, such an entitlement has been amply demonstrated in the instant case and is supported by independent expert opinion which is unchallenged by alternative expert evidence.

[17] To the extent that any domestic case law is available, it is entirely against the majority’s finding that an action in damages would not be ‘effective’.  The High Court in Kelly v Legal Aid Board referred specifically to this Court’s jurisprudence on ‘reasonable time’ when awarding the plaintiff damages for a two year delay in obtaining legal aid in order to institute proceedings.  To the extent that Kelly is the only case where damages for delay were claimed and awarded, there is no reason to believe that such a remedy would not be effective if sought by other litigants.

[18] Kemmy v. Ireland and the Attorney General [2009] IEHC 178.