ECHR: European Court of Human Rights says Irish law provides no effective remedy for unjustified delays in criminal proceedings

The European Court of Human Rights has found that Irish law provides no effective remedy for unjustified delays in criminal proceedings. In McFarlane -v- Ireland (application no. 31333/06) the Court found violations of Article 13 of the European Convention on Human Rights (the right to an effective remedy) and Article 6 (the right to a fair hearing).


Mr McFarlane was arrested in 1998 in connection with charges for offences alleged to have been committed in 1983. From the date of charge in 1998 criminal proceedings against him lasted for 10 years and six months. He was acquitted in 2008. Mr McFarlane argued that (a) Irish law provided him with no adequate remedy for breach of his right to a hearing within a reasonable time; and (b) his criminal proceedings had not concluded within a reasonable time.


As regards the first point, the Court rejected the State's submission that Irish law provided effective remedies for delays in criminal proceedings. The State argued that Mr McFarlane could have sought damages for breach of the Constitutional right to reasonable expedition in criminal proceedings. The Court noted that this remedy had been available in theory for 25 years yet never invoked. They recalled that a remedy "must be clearly set out and confirmed or complemented by practice or case law". In considering whether the proposed remedy was available to Mr McFarlane in any practical sense they considered relevant the following factors: the proposed remedy was legally and procedurally complex, novel, uncertain and could create a high costs exposure for Mr McFarlane.


It is noteworthy that the Court also rejected the submission that an alternative effective remedy lay under the ECHR Act 2003 in this context. They noted that any delay attributable to "the courts" would not be actionable under this Act as the courts are excluded from the definition of "organs of the state".


As regards the second point, while the Court accepted that Mr McFarlane's conduct had contributed somewhat to the delay, in their view that did not explain the overall length of proceedings, which was excessive.

PILA understands that this is the first Irish case to be argued before the European Court of Human Rights by a solicitor.


To view the Court's press release, please click here. To view the judgment, please click here. A webcast of the hearing is available on the Court website, please click here.



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