Ireland, Article 13 and Article 6: still no effective remedy for excessive delay in proceedings
12 May 2020
The recent judgment of the European Court of Human Rights in Keaney v Ireland (Application no. 72060/17) highlights the conflict that can arise between a common law legal system and the speed of redress which the European Court demands.
In 1994, Mr Vincent Keaney won IR£1m in the National Lottery. He used the money to open a Titanic-themed pub and restaurant in Cobh, County Cork, where in 1912 the ill-fated steamer ship stopped to board passengers for its voyage to America.
Mr Keaney subsequently fell out with his investment partners. In 2006 he started proceedings against them for fraud, deceit, misrepresentation and undue influence.
Between 2006 and 2008 a number of interim applications were heard in Mr Keaney’s case by the Irish High Court, following which Mr Keaney’s claims were struck out as against the majority of the defendants and he was required to make amendments to his statement of claim. In 2008 the High Court heard Mr Keaney’s case and dismissed the proceedings. Mr Keaney appealed this decision, and a number of the interim judgments, to the Supreme Court.
It was not until April 2017 that the Supreme Court then dismissed Mr Keaney’s final appeal, and only after the defendants had filed a motion to dismiss based on Mr Keaney’s failure to lodge the proper documentation.
In total the proceedings took more than 11 years. In October 2017 Mr Keaney lodged a claim with the European Court of Human Rights.
Article 6(1): unreasonable delay
Article 6(1) of the European Convention on Human Rights (ECHR) reads:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
In Mr Keaney’s case, the European Court found that although the delay suffered was to a certain extent caused by Mr Keaney’s own conduct of the case (in failing to lodge the correct documentation), there was nevertheless a breach of his rights under Article 6(1).
This finding was not particularly novel. Justice delayed is justice denied, even if justice is the timely dismissal of a bad case.
Article 13: no effective remedy for delay
Of more interest is the European Court’s finding that an effective remedy still does not exist in Ireland for breaches of Article 6(1) and the excessive delay of legal proceedings.
Article 13 ECHR provides that:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
A long history of delays
There have been a number of cases in the last 20 or so years in which the European Court has found that the Irish system has no effective remedy under Article 13. Most notably, in the 2010 case of McFarlane v Ireland (Application no. 31333/06) , the European Court dismissed arguments by the Irish government that an existing constitutional remedy, for damages for delay in breach of constitutional or ECHR rights, was sufficient.
Under Ireland’s constitution there is no express right to a speedy trial, but the Irish courts have interpreted the constitution’s Article 40.3 (under which the State guarantees in its laws to respect, defend and vindicate the personal rights of the citizen) to provide a right to trial with reasonable expedition.
There is also a statutory remedy under Ireland’s European Convention on Human Rights Act 2003 for breaches of the ECHR by organs of the state. This remedy applies if there is no remedy available under the constitution, however it specifically excludes breaches by the courts.
In McFarlane v Ireland, although the constitutional remedy had existed in theory for around 25 years, the European Court held that it was not an effective remedy because it had never been invoked: there were no practical examples of how the remedy would be delivered and its application would therefore involve complex and novel legal proceedings.
Execution of the McFarlane judgment was subject to the supervision procedure of the Committee of Ministers of the Council of Europe, which requires the relevant state to submit an action plan and to take measures to resolve its ECHR breaches.
The issue came again before the Irish Supreme Court in the 2016 case of Nash v DPP ( IR 320). The Supreme Court did confirm the existence of the constitutional right to damages – but held that it was not engaged in that case, as there was no culpability on the part of the State for the delay. The court refrained from ruling further on how such applications would be considered in future: it said the application of the remedy was very fact dependent and that its parameters should not be decided in a vacuum.
In 2017, the supervising Committee of Ministers considered the judgment in Nash and decided that on its own it was not sufficient to establish an effective remedy for delayed proceedings as required by Article 13 ECHR.
Since then, the Irish Government has proposed draft legislation to introduce a statutory remedy for procedural delay, but this is still subject to government review and has not yet become law.
Keaney: the European Court’s decision
In Keaney, the European Court had to decide whether enough had yet been done to establish the effective remedy required. The answer was a resounding ‘No’. The European Court said that not only did the Nash judgment fail to set out general parameters for damages for procedural delay, but it took more than six years for Nash’s delay application to be finally resolved. In the absence of a statutory remedy, applicants will have to go back to the same judicial system as caused the delay in the first place, and engage in further lengthy and complicated proceedings. This was not an effective remedy.
The European Court’s judgment goes to the very heart of the common law system of legal development and seems to say that, in this case, the common law system is inadequate.
Judge O’Leary gave a concurring opinion at the end of the judgment and pointed out that, by ruling in 2010 that the constitutional right was not an effective remedy, the European Court effectively ensured that it remained so. This approach creates a rather vicious circle for available, but untested, remedies. The European Court has made it clear that states must act quickly to resolve breaches of Article 13, and that what is likely required are clear legislative solutions rather than a steady development of case law by the judiciary.
It may seem odd that someone such as Mr Keaney should be hailed as a victor in this case, whose own conduct in the litigation was largely to blame for the delay he experienced. But as Judge O’Leary commented,“Not all sound legal principles find the appropriate champion”. The European Court declined to grant Keaney any damages and awarded him only EUR3,000 in costs.
- From 2 July 2016: Strasbourg Court rules on “excessive” length of Scottish criminal proceedings by Fraser Simpson
- More articles on Article 13 ECHR