O'REILLY and OTHERS v. IRELAND - 54725/00 - HEDEC [2003] ECHR 723 (04 September 2003)

THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54725/00
by Desmond O’REILLY and Others
against Ireland

The European Court of Human Rights (Third Section), sitting on 4 September 2003 as a Chamber composed of

         Mr     G.Ress, President,
         Mr     I.Cabral Barreto,
         Mr     L.Caflisch,
         Mr     B.Zupančič,
         Mr     J.Hedigan,
         Mrs   M.Tsatsa-Nikolovska,
         Mr     K.Traja,judges,
and    Mr     V.Berger, Section Registrar,

Having regard to the above application lodged on 1 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

There are ten applicants: Desmond O’Reilly, James McGurren, Carol Moore, William Moore, Kevin Ludlow, Patrick Leddy, Patrick Brady, John Wilson, Agnes Ludlow and Maura Egan. All are Irish nationals living in Belturbet, County Cavan, Ireland. They are represented before the Court by Mr G. Toolan, of Walter G. Toolan & Sons, solicitors, practising in County Leitrim, Ireland.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants all reside on a public road in Belturbet, County Cavan. Since in or round 1974 the County Council (“the Council”) had not carried out any repairs to that road (save some minor works in 1994) and the road had deteriorated to such an extent that it was dangerous to vehicles. The road constituted the sole access to the applicants’ homes and premises. The applicants unsuccessfully attempted, via their solicitors, to persuade the Council to repair the road.

On 21 July 1994, 34 residents on the road applied on an ex parte basis for leave to take judicial review proceedings. The applicants, apart from the ninth and tenth applicants, were applicants in these domestic proceedings. The references to the “applicants” in the proceedings described below concern therefore the first eight applicants only.

The relief sought was an order of mandamus compelling the Council to repair the road and put it in good condition, a declaration that the Council had failed in its statutory duty to maintain the road in good repair and condition, damages for breach of statutory duty and costs.

The grounds were as follows. The applicants were ratepayers and required the use of the road for occupational, professional, social and recreational purposes. As persons materially affected in their daily lives they considered they had locus standi to seek relief. By virtue of section 82 of the Local Government (Ireland) Act 1898 (“the 1898 Act”), section 24 of the Local Government Act 1925 (“the 1925 Act”) and section 13 of the Roads Act 1993 (“the 1993 Act”), the Council was responsible for the maintenance and repair of the road. The road had, however, deteriorated to the point where it posed a real danger to road users and, despite the applicants attempts to persuade the Council to fulfil their duty to repair, they had not done so. The applicants submitted a number of affidavits and documents concerning the bad state of the road, describing the applicants’ professional and associated activities (mainly agricultural but including a mushroom growing enterprise and a haulage business) and detailing incidents where the applicants and their businesses suffered losses: these included the inability of a bus to access the road to pick up a handicapped person, significant damage to the applicant farmers’ farm vehicles and machinery, damage to the applicants cars and personal injury following falls from bicycles due to the bad state of the road. Ancillary inconvenience was caused by the necessity to take long detours to avoid as much of the road as possible.

On 25 July 1994 the applicants were granted leave to apply for judicial review by way of an order of mandamus in respect of the Council’s failure to maintain the road.

By letter dated 4 August 1994 the applicants served the proceedings on the Council. On 5 December 1994 the Council served its statement of opposition. On 14 December the Council filed an affidavit of the County Engineer, on 20 February 1995 the applicants filed a further affidavit in response, on 29 March 1995 the County Engineer filed a further affidavit in response and on 31 March 1995 the applicants filed a final responding affidavit.

The Council initially pleaded that the applicants did not have locus standi, but later dropped this argument and conceded the point. The Council also denied that it had a statutory duty to repair the applicants’ road and claimed that at all times it had acted reasonably in the discharge of its functions to repair roads generally, in particular having regard to the limited resources available or likely to be available. It pleaded that it must perform all its functions within an overall budget derived from grants from central Government rates, payments and service charge payments. In allocating resources within that budget to roads it exercised its functions under the statutory powers vested in it fairly and reasonably, in accordance with natural justice and not arbitrarily.

The only way it could fulfil its statutory duty within the means available to it was by tackling the road repair programme over a period of years and applying what resources it had in a rational and systematic order. The Council also submitted that to select one strip of road from the several hundred in very poor condition would not ensure the fulfilment of its statutory duty, but would result in its responsibilities being discharged in a haphazard and arbitrary manner by the elevation of that particular road to an unjustified priority in its road repair programme.

On 4 and 5 April 1995 the application for judicial review was heard by the High Court and the High Court judge reserved judgment.

Some months thereafter, senior counsel for both the applicants and the Council went to see the High Court judge and requested a judgment as quickly as possible. The judge indicated that given the extent of her commitments, she was not in a position to do so.

In November 1996 one of the applicants wrote to the President of the High Court requesting that arrangements be made to have the judgment delivered quickly. The President of the High Court responded that he would endeavour to have the judgment delivered speedily.

In or around November 1996 the President of the High Court issued general directions that all complaints about delays in proceedings should be forwarded to him.

By judgment delivered on 6 December 1996 the High Court made an order of mandamus requiring the Council to repair the road and to put it into good condition. The applicants’ costs before the High Court were to be discharged by the Council. The High Court noted that the Council did not dispute the factual condition of the road so that the position was that the area comprised minor roads whose condition had deteriorated, that the road was consequently dangerous for vehicles and that the Council had not enough money to repair them.

The issues before the Court were (a) whether there was a statutory duty to repair and maintain the applicants’ road; (b) whether the lack of resources was a defence; and (c) whether there were discretionary grounds to refuse the relief sought (order of mandamus and a declaration).

Having reviewed the relevant statutory provisions, the Court concluded as follows:

“In my opinion in the legislative labyrinth which starts with the [1898 Act], the statutory duty imposed on a local authority to repair and maintain roads within its area has remained constant. Section 13 of the [1993 Act] subsections (1) and (2) must in my view be interpreted as not only giving a power but also imposing a duty/obligation to repair and maintain roads. At no stage was that statutory obligation of a local authority altered or lessened by reference to the money made available by Central Government. In fact the obligation of a local authority to perform functions which it is required by law to perform is reiterated in section 7(2) of the Local Government Act 1991. The reference in Section 7(1) to the obligation to have regard to resources available is subject to subsection 2.

The same obligation is repeated in Section 13(3) of the [1993 Act].

Section 13(6) of the [1993 Act] does not relieve the local authority of its duty to repair. It is an enabling provision which allows consent to be given to the work being carried out by others. Section 13(9) [of the 1993 Act] preserves the liability (where it exists) of other persons for the construction and maintenance of fences and retaining walls which do not form part of the road or bridges, tunnels, railway crossings and other structures. The construction and maintenance of roads themselves is still the liability of the local authority.

The Oireachtas having imposed and continued a statutory obligation on a local authority to maintain roads, must, as long as that obligation remains unqualified, make it possible for the Local Authorities to perform its statutory duties. Pre-1978 the Local Authority would have had to increase its rates to discharge its obligations. But since the elimination of a broad based rating system it is no longer possible for a County Council to do this. The Central Fund therefore must make up the shortfall. This is not a case of telling the government how it must spend money. It is a case of [parliament] having imposed a statutory duty on local authorities, being required to provide the means of carrying out that duty.

Mandamus is the appropriate remedy (see R (Westropp) -v- Clare County Council 1904 2 I.R. 4 2 I.R. 569. Hoey -v- the Minister for Justice 1994 I.L.R.M. 334 is analogous.

It is not impossible for the ... Council to carry out its statutory duties vis-à-vis the Applicants. The objection raised by the ... Council is that the Applicants will get precedence over other similarly disadvantaged residents in County Cavan. That may well be so. But the fact is that they have applied to the Court for relief and they are entitled to it. The flood gates are a problem for another day unless the statutory duties are amended.

In my opinion there are no discretionary grounds which would warrant refusing the relief sought. Accordingly, an Order of mandamus will issue.”

The Council’s request for a stay on the order of the High Court was adjourned until 20 December 1996, when the High Court judge ordered that execution on foot of the order be stayed for six months from the date of perfection of the High Court order, that any application for an extension of the stay be made to the Supreme Court and that, in the event of an appeal by the Council, the stay on the order for costs would remain pending final determination of the appeal.

On 9 January 1997 the Council appealed to the Supreme Court. On 16 January 1997 the Council requested the applicants’ consent to the Council amending its notice of appeal. The applicants so consented.

A memorandum of the President of the High Court published in the Bar Review of January/February 1997 noted the delays in delivering reserved judgments due to the shortage of judges and requested legal practitioners to formally notify the President of the High Court of their concerns about such delays.

In 1997 the Council also commenced repair work on the relevant road which was completed by the end of 1998.

On 11 March 1997 the Attorney General applied for liberty to appear as amicus curiae and be heard in the proceedings. By affidavit dated 1 May 1997 the applicants objected to the application and to the arguments the Attorney General was proposing to make. A hearing took place on this point on 22 July 1997 following which the Attorney General was given leave to appear and address the Supreme Court at the appeal hearing.

A date for the hearing of the appeal was fixed for December 1997 to accommodate another urgent and serious case of some constitutional importance.

On 18 February 1998 the Supreme Court commenced the appeal hearing but adjourned the hearing to the following day. However, the appeal hearing could not be heard on the following day because of other pressing business. The next available hearing date was over a year later on 26 February 1999. On that date the appeal hearing resumed and concluded. Although by that time the repair work on the road had been completed, the Supreme Court considered that the appeal should proceed given the public importance of the issues.

On the 17 June 1999 Keane J. delivered the judgment of the Supreme Court allowing the appeal of the Council (three of the five judges of the court agreed with his judgment). Keane J. found that the facts of the case were not seriously in dispute. The road used by the applicants had deteriorated through a lack of repair and maintenance to such an extent that it was, at the time of the High Court hearing, dangerous to vehicles. Keane J. also referred to the affidavit of the County Engineer who had indicated that there were 1,350 “discrete” roads in Cavan, approximately 600, including those where the applicants lived, were in “very poor or critical condition”. The cost of putting all of those roads into a satisfactory condition would be the order of 40 million Irish pounds (IR£)which funding the Council did not have.

The County Engineer had recommended an eight-year recovery programme costing almost IR£10 million but noted that, on the basis of the finances available, it would take 22 years before the entire road network in Cavan could be brought into a satisfactory condition. The County Engineer went on to outline the criteria by which the Council determined the maintenance priority of the roads: the degree of deterioration of the road, the number of families availing of the road, the needs of industry and employment, the types of traffic using the road, the volume of traffic, whether there exist particular cases of social or medical needs, the potential for tourism development and representations from local elected representatives and from private individuals.

Since neither the bad state of roads in County Cavan including the applicants’ road (although they contended that their road was in an exceptional state of neglect) nor the Council’s duty to repair them were disputed before it, the issue before the Supreme Court was whether the applicants were entitled to an order of mandamus requiring the Council to comply with its statutory duty by repairing the applicants’ road.

Keane J. found that the Council’s submissions about insufficient resources and the practical impact of an order of mandamus to be factually correct and unchallenged: the only effect of an order of mandamus would have been the repair of the applicants’ road. Unless further funds were provided by central Government, the rest of the road system in County Cavan would remain in a state of unacceptable disrepair in the future. An order of mandamus would therefore fail to secure compliance by the respondent with its statutory duty:

“I would not be disposed to hold that the court should bring the rigours of mandamus to bear on a public authority where it is acknowledged that it has not the means to comply with the order and that its successful implementation depends on the co-operation of other bodies [the Government or the Minister for the Environment] who are not before the Court. ...

I am satisfied, that while the granting of mandamus is a discretionary remedy, the learned High Court judge erred in principle in the manner in which she exercised that discretion, having regard to the futility of granting the order where the respondent had not the means to carry out its undoubted statutory duty”.

Having referred to the fact that a person who suffered injury by reasons of a failure of a Council to carry out its statutory duty to repair a road could not recover damages therefrom, Keane J. continued:

“The law would be in a remarkable and anomalous state if a person who suffered the most catastrophic injuries as a result of the culpable neglect of the [Council] in fulfilling its statutory duty, even in a case where it had the appropriate resources, could not recover damages, while a person who suffers no more than inconvenience in circumstances where the Council’s failure is due, not to its neglect as such, but to lack of funds, is provided by the law with a remedy in the form of an order of mandamus. I do not in any way underestimate the hardship which has been caused to some of the applicants in the present case, which extends beyond mere inconvenience, and, in one instance at least, to the sustaining of personal injuries. But if the arguments on behalf of the applicants are well founded it would follow that an order of mandamus should similarly be granted in respect of the non-repair of the road, where the inconvenience suffered by the applicants was significantly less and might not even be capable of being classified as a serious hardship.”

In dissenting, Murphy J. considered that the obligation imposed by parliament on local authorities to keep roads in good condition and repair was a statutory duty that could be enforced as such. The case was adjourned to 22 June 1999 for submissions on ancillary orders to be made. On that day the Supreme Court confirmed that the appeal be allowed and that the order of the High Court be set aside. No order as to the costs was made (the costs of the High or Supreme Court proceedings), meaning that both parties would be responsible for their own costs.

B. Relevant domestic law and practice

1. Relevant Constitutional provisions

Article 40(3)(1) of the Constitution provides:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

Certain of the personal rights of the citizen are explicitly guaranteed by provisions of the Constitution. In addition, in interpreting and applying Article 40(3)(1) of the Constitution, the Irish courts have identified other “unenumerated” rights protected by virtue of that Article. These include the principle of “constitutional justice” (inter alia, no one should be a judge in their own cause (nemo iudex in sua causa), anyone who may be adversely affected by a decision should be afforded the opportunity to put their side of the case (audi alteram partem) and the right to fair procedures). The other relevant unenumerated right derived from Article 40(3)(1) is the right to litigate or the right of access to court.

2. The Court and Court Officers Act 2002 (the 2002 Act)

Section 46 of this Act introduced a register of reserved judgments. If a judge fails to deliver a judgment within specified time-limits, the matter is re-entered in open court so that the judge can provide an explanation for the delay and indicate when judgment is likely to be given.

3. The Local Government (Ireland) Act 1898 (the 1898 Act”)

Section 1 of the 1898 Act reads as follows:

“Where a mandamus is issued by the High Court to any County or District Council, and the Council fails to comply therewith, the Court may appoint an officer and confer on him all or any of the powers of the defaulting Council which appear to the Court necessary for carrying into effect the mandamus.”

Section 82 of the 1898 Act reads as follows:

“It shall be the duty of every county and district council, according to their respective powers, to keep all public works maintainable at the costs of their county or district in good condition and repair and to take all steps necessary for that purpose.”

By virtue of section 109 of the 1898 Act, “public works” includes roads.

4. The Local Government Act 1991 (“the 1991 Act”)

Section 7 of the 1991 Act is entitled “Local authorities to have regard to certain matters in performing functions” and reads, as relevant, as follows:

“(1) Subject to subsection (2), a local authority, in performing the functions conferred on it by or under this or any other enactment, shall have regard to -

(a) the resources, wherever originating, that are available or likely to be available to it for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources,

(b) the need to maintain adequately those services provided by it which it considers to be essential and, in so far as practicable, to ensure that a reasonable balance is achieved, taking account of all relevant factors, between its functional programmes,

(c) the need for co-operation with, and the co-ordination of its activities with those of, other local authorities and public authorities the performance of whose functions affect or may affect the performance of those of the authority so as to ensure efficiency and economy in the performance of its functions,

(d) the need for consultation with other local authorities and public authorities in appropriate cases,

(e) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to its functions.

(2) A local authority shall perform those functions which it is required by law to perform and this section shall not be construed as affecting any such requirement.”

5. The Roads Act 1993 (“the 1993 Act”)

The performance of “functions” is defined as including the performance of powers and duties by section 2 of the 1993 Act. Section 13 of the 1993 Act is entitled “Responsibility of road authorities for the maintenance and construction of public roads” and reads, in so far as relevant, as follows:

“(1) Subject to Part III, the maintenance and construction of all national and regional roads in an administrative county shall be a function of the council or county borough corporation of that county.

(2) It shall be a function of the council of a county, the corporation of a county or other borough or the council of an urban district to maintain and construct all local roads -

(a) in the case of the council of a county - in its administrative county, excluding any borough or urban district,

(b) in the case of any other local authority - in its administrative area.

(3) The local authorities referred to in subsections (1) and (2) shall be road authorities for the purposes of the roads referred to in those subsections and shall, subject to Part III and in respect of those roads, perform all the functions assigned to road authorities by or under any enactment (including this Act) or instrument.

(4) The expenses of the council of a county in respect of its functions under subsection (2) shall be charged on the county exclusive of any borough or urban district.

(5) In the performance of their functions under subsections (1) and (2), a road authority shall consider the needs of all road users.

...

(9) Notwithstanding the definition of “road” in Section 2, nothing in this Act shall be construed as imposing on a road authority any liability, duty or obligation to -

(a) construct or maintain fences or retaining walls adjoining a public road which are the responsibility of any other person and which do not form part of the road, or

(b) construct or maintain any bridges, tunnels, railway crossings or any other structure which by virtue of any enactment are the responsibility of a railway company or other person.”

THE LAW

The applicants complain under Article 6 § 1 about the length of the judicial review proceedings and under Article 13 about the lack of an effective remedy in this respect.

Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of his civil rights..., everyone is entitled to a ... hearing within a reasonable time ...”

Article 13 reads, in so far as relevant, as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ... .”

A. Compatibility ratione personae

The Court notes that the ninth and tenth applicants, Agnes Ludlow and Maura Egan, were not applicants in the domestic judicial review proceedings. The Court notes that the complaints before it concern alleged undue delay in those proceedings and the reasonable time requirement of Article 6 together with an alleged lack of an effective remedy for any such delay and Article 13 of the Convention. The Court does not consider that these two applicants can claim to be victims of such violations of those provisions when neither of them were a party to those proceedings.

Their complaints under Article 6 alone and in conjunction with Article 13 must therefore be declared inadmissible as incompatible ratione personae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

References below to the applicants concern the first to eight applicants (inclusive) named above.

B. Compatibility ratione materiae – the applicability of Article 6

The Government argue that the complaints are incompatible ratione materiae with the provisions of the Convention as the proceedings did not involve the determination of “civil rights and obligations” but rather were concerned with the existence and scope of a public duty. The measure of discretion left to the local authority and to the courts indicates that no “civil right or obligation” was recognised by domestic law. The courts examined whether the local authority was under an absolute or qualified statutory duty enforceable by the High Court, pursuant to section 82(1) of the 1898 Act, and whether it could be compelled to fulfil that duty by an order of mandamus from the High Court. This required an examination of the existence and scope of a public duty so that, according to the Government, the situation was more clearly a matter of public law and not one concerning the private rights and obligations of the applicants.

Even if Article 6 § 1 was applicable to the High Court proceedings, it was not applicable to the proceedings before the Supreme Court since the outcome of the Supreme Court proceedings was not directly decisive of any right: the road works had commenced soon after the appeal was filed so that the point was moot as far as the applicants were concerned and of academic interest only.

The applicants point out that they were held to have sufficient standing and a legal right to have the statutory provision in question enforced and that they were seriously affected by the state of disrepair of the road: if the right in question was merely a “public” one, they would not have had standing in the domestic courts to enforce it. The High Court found that the Council had not fulfilled its statutory duty to repair the road and the only reason no order was made in the end was because the Council did not have sufficient funds. Indeed the only issue before the Supreme Court was not the existence of the right or the applicants’ legal entitlement to have that right enforced, but rather whether the Council should have been coerced into performing their repair obligations on the applicants’ road by way of an order of mandamus even in the absence of appropriate funds. In addition, the right to sue for breach of a statutory duty is governed by the law of torts and is unarguably a matter of private law.

The Court recalls its constant case-law to the effect that “Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, § 192; the Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, § 32).

Furthermore, the domestic classification of a right or duty as falling within the public or private area will not be decisive as it is the substantive content and effects of the right that are decisive for the purposes of establishing its character and the applicability of Article 6 § 1 of the Convention (the above-cited Stran Greek Refineries case, § 39). In this respect, the Court will examine the features of the right or duty at issue to determine whether the character of the right or duty is in substance predominantly a “public” or “private” one (see, for example, König v. Germany, judgment of 28 June 1978, Series A no. 27, §§ 89-90, and Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, § 40).

In the present case, it was not disputed that the Council had a statutory obligation to repair roads either in the High Court or in the Supreme Court (Keane J. referring to that obligation as an “undoubted statutory duty”). The matter open to debate was whether the applicants were entitled to an order of mandamus to enforce that obligation as regards their road. The High Court agreed that they were so entitled while the Supreme Court considered that they were not, one judge of the Supreme Court dissenting. In such circumstances, the Court considers that the proceedings concerned, at the very least, a dispute of a “genuine and serious nature” concerning the scope or manner in which the accepted statutory duty of the Council to repair and maintain roads would be exercised.

As to whether that duty is considered to be of a predominantly public nature, the Court recalls that, while the Council initially suggested that the applicants had no locus standi, this argument was not maintained before the High Court and was not raised before the Supreme Court. Consistently, both courts, and in particular the Supreme Court, recognised the direct impact on the applicants of the undisputed bad state of the roads and the applicants detailed affidavits, together with that of the County Engineer, submitted to the domestic courts in this respect are noted. It was not therefore disputed, either at first instance or on appeal, that the applicants had direct personal and professional interests in the scope and manner in which the Council’s statutory duty as regards road repair was exercised. This represents, in the Court’s view, a strong private element tending towards the applicability of Article 6 of the Convention.

It is true that the Supreme Court exercised its discretion not to make an order of mandamus, but the fact that the Council was thereby effectively allowed a measure of discretion as to the exercise of its statutory obligation is a relevant but not a decisive factor in the assessment of the public or private nature of the obligation at issue (mutatis mutandis, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, § 69).

Finally, the Court considers that the precise nature of obligation at issue cannot be determined, as the Government suggest, by reference to the fact that the Council had, by the date of the Supreme Court hearing, satisfied any statutory duty they may have been considered to have had by the High Court. In any event, the applicants were directly affected by the outcome of the Supreme Court proceedings since the order for costs in their favour in the High Court was overturned so that, after the judgment on appeal, the applicants became responsible for their own costs of the entire judicial review proceedings.

The Court finds therefore that the private element of the obligation in question was sufficient to render Article 6 applicable to the proceedings brought by the applicants.

C. Exhaustion of domestic remedies

The Government also argue that the application is inadmissible since the applicants failed to exhaust domestic remedies since they had available to them effective remedies as regards any delay in the proceedings. They could have challenged any delay they considered unreasonable on constitutional grounds. In particular, it was open to them to contend, at any stage of the proceedings, that they had a right to a decision within a reasonable time as a principle of constitutional justice and as an aspect of the constitutional right to litigate. No particular remedy is prescribed for the infringement of an individual’s constitutional rights and the appropriate remedy will depend on the facts of the case, but it “may” include damages.

The applicants maintain that the right to a reasonably prompt decision may be a right guaranteed by the Constitution and that the judiciary would be bound by this constitutional obligation, but point out that, nevertheless, they had no effective method whereby the High Court could have been compelled to deliver judgment more swiftly or the Supreme Court obliged to resume on an early date its hearing of the appeal. Indeed, there is no statutory or other procedure whatsoever in place by which they could have applied to a court to speed up such matters.

The Court is of the view that these arguments are closely linked to the merits of the applicants’ complaint under Article 13 of the Convention. Consequently, they should be joined to the merits of the application (see below).

D. Merits

According to the applicants, the proceedings took unreasonably long and breached the “reasonable time” requirement of Article 6 § 1 of the Convention. They further maintain under Article 13 of the Convention that they did not have an effective domestic remedy in that respect. They submit that the delay in the proceedings added to their legal costs.

The Government dispute that there was undue delay in the proceedings and argue that the applicants had an effective domestic remedy in respect of any undue delay. They also consider the applicants’ submission, that legal costs increased as a result of the alleged delays, to be unsustainable.

The Court recalls that the proceedings began with the applicants’ ex parte motion for leave to apply for judicial review on 21 July 1994. They ended with the making of the final orders of the Supreme Court on 22 June 1999. They lasted therefore just over 4 years and 11 months. During this time it is noted that the High Court hearing took place in April 1995 and judgment was delivered by that court on 6 December 1996. In addition, the appeal hearing was adjourned from February 1998 to February 1999.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” under Article 6 § 1 and its case-law under Article 13 as regards effective remedies for undue delays in proceedings, and having regard to all the information in its possession, that these complaints are not manifestly ill-founded and an examination of the merits is required.

For these reasons, the Court unanimously

Declares the complaints of the first eight applicants about the unreasonable length of their proceedings and the lack of an effective domestic remedy in that regard admissible, without prejudging the merits of the case, and

Declares the complaints of the ninth and tenth applicants, Agnes Ludlow and Maura Egan, inadmissible.

Vincent Berger Georg Ress
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> O'REILLY and OTHERS v. IRELAND - 54725/00 - HEDEC [2003] ECHR 723 (04 September 2003) URL: http://www.bailii.org/eu/cases/ECHR/2003/723.html Cite as: (2004) 38 EHRR CD127, [2003] ECHR 723, 38 EHRR CD127