CEDH · CASELAW;REPORTS;ENG — 22 février 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    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.