DISSENTING OPINION OF JUDGE POWER

The question of whether an effective remedy in damages for breach of a Constitutional and Convention right to trial within a reasonable time exists in Ireland was the issue which came before this Court in the recent case of McFarlane v. Ireland . [1] That case involved criminal proceedings and it was not contested that there exists a considerable body of domestic case law that demonstrates that damages for a breach of a Constitutional right are readily available (see § 85 of the McFarlane Judgment). There was also opened to the Court independent expert opinion to the effect that a Constitutional remedy is not just probably but “almost certainly” available in Ireland . [2] In those circumstances, I shared the opinion of the dissenting Judges that the probability of such a remedy had been established by the Respondent State and that there was, thus, an obligation upon a complainant to exhaust it prior to lodging an application with this Court.

For the reasons set out in the detailed joint dissenting opinion in McFarlane I voted against the majority on the admissibility and merits of the claim and I did likewise in the instant case. The consistent approach of this Court as articulated and reiterated by the Grand Chamber in Selmouni v. France [3] has been that the complaint which an applicant intends to make subsequently to this Court must first have been made to the appropriate domestic body.

The instant application was lodged in 2004. It is clear from the facts as outlined in the Judgment that the substance of the applicants ’ claims before the domestic courts was not concerned with an alleged breach of their constitutional right to a trial within a reasonable time. The proceedings were, as the majority points out, procedurally, legally and factually complex, but the dispute in issue did not concern the legal concept of the right to a trial within a reasonable time. It involved, rather, matters relating to insurance law and, subsequently, security for costs and company law. In my view, any complaint or claim which the applicants wish to make in relation to ‘ length of proceedings ’ ought to have been made, firstly, at domestic level.

The dissenting judges in McFarlane noted that the Judgment stood as an invitation to all who fail to have their allegedly lengthy criminal proceedings prohibited in Ireland to simply by-pass the domestic courts and to come directly to Strasbourg for an award of damages. In the light of that ‘ invitation ’ (extended in this case to civil proceedings) applications lodged in this Court after the date of the delivery of the McFarlane judgment may require consideration of additional matters to those outlined herein.

[1] McFarlane v. Ireland [GC] , no. 31333/06, 10 September 2010

[2] Also relied upon in this case at § 17 of the Respondent State ’s Observations dated 14 December, 2007

[3] Selmouni v. France [GC], no. 25803/94, § 74 , ECHR 1999 ‑ V