The Right to a Fair Hearing within a Reasonable Time

McFarlane v Ireland [2010] ECHR 1272 (10 September 2010)

In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable time under art 6 § 1 and the right to an effective remedy under art 13 of the European Convention of Human Rights.  The Grand Chamber awarded the applicant €5,500 in non-pecuniary damages and €10,000 in costs and expenses.

Facts

McFarlane was an Irish national who argued that criminal proceedings brought against him were unreasonably long and that he was denied an effective domestic remedy for a breach of this right.

In 1975, McFarlane was imprisoned for his role in a bombing in Northern Ireland.  He escaped from prison in 1983 and was believed to be involved in a high profile kidnapping in 1984, after his fingerprints were discovered.  In 1986, he was arrested in the Netherlands and served out the rest of his sentence — though he was never questioned about the kidnapping.  In 1998 he was released on parole before he was immediately arrested by the Irish police for offences relating to the kidnapping.  He was released on bail and around this time it was revealed that the original fingerprint evidence had been lost, although a forensic report remained available.  This began a period of prohibition actions and appeals until 26 June 2008, when a supposed confession was deemed inadmissible and the charges dismissed.  It was on this basis that McFarlane brought an action in April 2008 before the European Court of Human Rights.

Decision

Violation of Article 6 § 1

The Grand Chamber reiterated that:

[T]he reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant.

The Grand Chamber further reiterated that, where criminal matters are concerned, the ‘reasonable time’ referred to under art 6 § 1 begins to run from the moment a person is ‘charged’, stating:

‘Charge’, for the purposes of Article 6 § 1, may be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, a definition that also corresponds to the test whether ‘the situation of the [suspect] has been substantially affected’.

The Court went on to find that McFarlane was ‘substantially affected’ upon his arrest in January 1998 and that, therefore, the proceedings had lasted over 10 years and 6 months.  While the Court acknowledged that applicants should bring procedural applications with due diligence and bear any resulting delay, their Honours concluded that this did not explain the ‘overall length of the proceedings’.  It was noted that three periods of delay involved the fixing of hearing dates and were attributable to the authorities in the prohibition actions.  The charges faced by McFarlane were serious and a considerable burden was on his shoulders for over 10 years.  Ultimately, the Court concluded that the overall length was excessive and constituted a breach of the ‘reasonable time’ requirement under art 6 § 1.

Violation of Article 13

The Irish Government argued that there were four effective remedies available to McFarlane, including those through: (1) an action for damages for a breach of the constitutional right to reasonable expedition; (2) an action for damages under the European Convention on Human Rights Act 2003 (Ire); (3) an application to have an early hearing date; and (4) an application for prohibition.  The latter three purported remedies were quickly dispensed with by the majority of the Grand Chamber, but there was significant discussion on a potential constitutional action for damages.  Ultimately, the Court held that there was no effective constitutional remedy and looked to various factors that their Honours said cast considerable doubt over its effectiveness.

Relevance to the Victorian Charter

This decision may be useful when interpreting the right to a fair hearing under s 24 of the Charter, and the right in criminal proceedings to be tried without reasonable delay under s 25.

This decision is at www.bailii.org/eu/cases/ECHR/2010/1272.html.

Julien du Vergier, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group