THIRD SECTION
CASE OF O’REILLY
AND OTHERS v. IRELAND
(Application no.
54725/00)
JUDGMENT
STRASBOURG
29 July 2004
FINAL
29/10/2004
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of O’Reilly and Others v. Ireland,
The European Court of Human Rights (Third Section), sitting
as a Chamber composed of:
Mr G. Ress,
President,
Mr I. Cabral Barreto,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupančič,
Mr J. Hedigan,
Mr K. Traja, judges,
and Mr V.Berger, Section Registrar,
Having deliberated in private on 4 September 2003 and 8 July 2004,
Delivers the following judgment, which was adopted on the
last- mentioned date:
PROCEDURE
The case originated in an application (no.
54725/00) against Ireland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by ten Irish nationals, Mr Desmond O’Reilly, Mr James McGurren,
Ms Carol Moore, Mr William Moore, Mr Kevin Ludlow, Mr Patrick Leddy,
Mr Patrick Brady, Mr John Wilson, Ms Agnes Ludlow and Ms Maura Egan (“the
applicants”), on 1 November 1999.
The applicants were represented by Mr G.
Toolan, a solicitor practising in Leitrim, Ireland. The Irish Government (“the
Government”) were represented by their Agents, Dr A. Connelly and,
subsequently, Ms D. McQuade, of the Department of Foreign Affairs.
The applicants mainly complained about the
length of the proceedings they had brought against the local authority (Article
6 § 1 of the Convention) and that they did not have an effective remedy in this
regard (Article 13). They also made additional complaints under Article 6,
Article 8 and Article 1 of Protocol No. 1, alone and in conjunction with
Article 13 of the Convention.
The application was initially allocated to
the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the case (Article 27 § 1
of the Convention) was constituted as provided in Rule 26 § 1.
On 1 November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Third Section (Rule 52 § 1).
By a decision of 28 February 2002 the Court declared inadmissible the complaints under Article 6 (other than the complaint
concerning the length of the proceedings), under Article 8 and under Article 1
of Protocol No. 1 together with the related complaint under Article 13 of the
Convention.
By decision of 4 September 2003 it declared the remaining complaints of two of the applicants (Ms Agnes Ludlow and
Ms Maura Egan) inadmissible and declared admissible the remaining
complaints (under Article 6 about the length of the proceedings, alone and in
conjunction with Article 13 of the Convention) of the other eight applicants.
The Government filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants (Desmond O’Reilly, James McGurren,
Carol Moore, William Moore, Kevin Ludlow, Patrick Leddy, Patrick Brady and
John Wilson) live in Belturbet, Ireland and all have homes, farms or
business premises on a public road in Belturbet.
On 21 July 1994 certain residents on the road (including the applicants) applied on an ex parte basis for leave to
take judicial review proceedings. 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 together with damages for breach of statutory
duty and costs.
On 25 July 1994 leave was granted to apply for judicial review by way of an order of mandamus. 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 1994 the Council filed an affidavit of the CountyEngineer, on 20 February 1995 the applicants filed an affidavit in response, on 29 March 1995 the CountyEngineer filed a further affidavit and on 31 March 1995 the applicants filed a final
responding affidavit. The pleadings thereby closed.
On 4 and 5 April 1995 the application for judicial review was heard by the High Court. Judgment was reserved.
Some months thereafter, senior counsel for
both parties requested an early judgment of the relevant High Court judge who
indicated that she could not given the extent of her commitments.
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.
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 court found that the Council had a
statutory obligation to repair the road and keep it in good condition and that
the Council’s lack of resources could not constitute a defence. An order for
costs was made in the applicants’ favour.
The Council requested a stay on the order of
the High Court and this application 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.
In 1997 the Council 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 but this was vacated to accommodate an urgent case. On 18 February 1998 the Supreme Court started but did not finish the appeal hearing. It could
not finish it on the next day because of other pre-assigned 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 the repair work on the road
had been completed by that time, the Supreme Court considered that the appeal
should proceed given the public importance of the issues.
On 17 June 1999 the Supreme Court delivered its judgment allowing the appeal. The court noted that the Council did not have
the financial resources necessary to repair the estimated 600 roads in poor
condition in the area and considered that the courts should not make orders of mandamus
where it is acknowledged that the public authority did not have the
resources to comply with the order and where the implementation of the order
depended on the co-operation of other Government bodies.
The case was adjourned to 22 June 1999 for submissions on ancillary orders to be made. On that day the Supreme Court confirmed
its decision to allow the appeal. No order as to the costs (of the High or
Supreme Court) was made so that the parties were responsible for their own
costs.
II RELEVANT DOMESTIC LAW AND PRACTICE
A. Practice of the High Court with respect to delay
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. 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.
B. The Court and Court Officers Act 2002
Section 46 of this Act introduced a register
of reserved judgments. If a judge does not deliver a judgment within specified
time-limits, the matter is re-entered in open court and the judge is required
to enter a date in the register by which the judgment will be delivered.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF
THE CONVENTION
The applicants complained under Article 6 §
1 of the Convention about the length of the proceedings and under Article 13 of
the Convention about the lack of an effective domestic remedy in this regard.
Article 6 § 1, in so far as relevant, provides as follows:
“In the determination of his civil rights ... , everyone is
entitled to a ... hearing within a reasonable time ...”
Article 13, as relevant, reads as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority ... ”
A. The
parties’ submissions
1. The Government
The
Government considered that the length of the proceedings was not unreasonable
having regard to all the circumstances of the case. They maintained that the
issues raised by the case were novel, complex and of general public concern.
Any delay before 31 March 1995 was due to the exchange of the parties’
pleadings. While acknowledging that the applicants were exercising their legal
right, the Government argued that their opposition to the Attorney-General’s
application delayed the proceedings since a separate hearing was required. The
Government further noted that, while the applicants made some effort to secure
the delivery of the High Court judgment (April 1995 - December 1996), they made
no such effort to ensure the resumption of the Supreme Court hearing after
February 1998. It was reasonable, in the Government’s view, for the Supreme
Court to give priority to more urgent cases and the appeal hearing did not
finish in February 1998 because the parties had incorrectly estimated the time
necessary. Finally, and as to what was at stake for the applicants, the
Government submitted that the case had no relevant significance for the
applicants after 1998 (other than costs) as the Council had already repaired
the road pursuant to the High Court judgment.
As to Article 13, the Government pointed out
that the applicants could have, but did not, challenge the alleged unreasonable
delay on the basis of a constitutional right to a decision within a reasonable
time both as a general principle of constitutional justice and as an aspect of
the right to litigate expressly guaranteed by the Constitution.
2. The applicants
The applicants maintained their argument
that the proceedings were too long. They rejected the Government’s suggestion
that they contributed to the delay submitting, inter alia, that the
Attorney-General’s application was made late and that it caused one year’s
delay. The legal issues were not excessively complex and, in this regard that,
the applicants pointed out that, once the Supreme Court had heard the case, it
was able to deliver its judgment within four months.
As to the remedies available, the applicants
submitted that, even accepting that there was a constitutional right to a
reasonably prompt decision, there was no effective method by which the High
Court and the Supreme Court could be compelled to deliver a swift decision.
They had used as much as possible the limited and informal mechanisms available
and the new arrangements introduced by the President of the High Court and the
new provisions contained in the Court and Court Officers Act 2002 were not in
force at the relevant time. They also noted that they were powerless to do
anything about the delay in the appeal hearing which was postponed for more
urgent cases.
B. The
Court’s assessment
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and having regard to the criteria laid down in the Court’s case-law,
in particular the complexity of the case, the conduct of the applicant and of
the relevant authorities, and the importance of what is at stake for the
applicant in the litigation (see, among other authorities, Comingersoll
v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV, and Horvat
v. Croatia, no. 51585/99, § 52, ECHR 2001-VIII).
It notes that the proceedings began with the
application for leave to apply for judicial review on 21 July 1994 and ended on 22 June 1999 with the final orders of the Supreme Court: they lasted some
four years and eleven months. While the Court notes that the case concerned
certain complex legal issues of some public importance, it was neither
procedurally nor factually complex.
As to the applicants’ conduct, the Court notes
that the applicants exercised their legal right to object to the
Attorney-General’s application and, while this necessitated a hearing in the
Supreme Court, it did not significantly delay the proceedings: the
Attorney-General made his application on 11 March 1997, the applicants objected
on 1 May 1997 and the matter was determined on 22 July 1997. As regards the Government’s
submission that the applicants did not pursue the speedy resumption of the
Supreme Court proceedings after February 1998, the Court recalls that States
are obliged to organise their legal systems so as to allow the courts to comply
with the reasonable time requirement of Article 6 so that even a principle of
domestic law or practice requiring the parties to take initiatives to advance
the proceedings does not dispense the State from this obligation (Süßmann v.
Germany, judgment of 16 September 1996, Reports of Judgments and
Decisions 1996-IV, p. 1174, § 55, Mitchell and Holloway v. the United
Kingdom, no. 44808/98, § 56, 17 December 2002, and Price and Lowe
v. the United Kingdom,nos. 43185/98 and 43186/98, § 23,
29 July 2003). The Court does not find that any material periods of delay
are attributable to the applicants.
On the other hand, the Court considers that
two specific and lengthy periods of delay are attributable to the domestic
authorities. In the first place, a period of approximately one year and eight
months elapsed between the High Court hearing (4 and 5 April 1995) and the
delivery of its judgment (6 December 1996). Secondly, there was a material
delay in the appeal hearing: it was adjourned in December 1997 to accommodate
an urgent case and, while it started on 18 February 1998, it did not resume and finish until a year later given the pre-assigned business before the Supreme
Court. While the High Court judge had other judicial commitments, while an
urgent case and other court business combined to delay the Supreme Court
hearing and even if the parties incorrectly estimated the appeal hearing time,
the Court reiterates that it is for the State to organise its legal systems as
to comply with the reasonable time aspect of Article 6 of the Convention (see
the previous paragraph).
As to what was at stake for the applicants,
the Court notes that, while the repair works on the road were completed in
1998, the not insignificant question of costs remained to be determined.
In such circumstances and having regard to
the criteria laid down in the case-law, the Court finds that the proceedings in
the present case were not dealt with within a “reasonable time” as required by
Article 6 § 1 and that there has therefore been a violation of that provision.
As to the applicants’ complaint under
Article 13 that they had no effective domestic remedy as regards the excessive
length of the proceedings, the Court recalls that the remedies on which the
Government relied have been found, in the case of Doran v. Ireland (no.
50389/99, § 69, ECHR 2003-X), not to be effective so that the Court concluded
in that case that there was a lack of effective domestic remedies as regards
the length of civil proceedings in violation of Article 13. The Government have
not presented any new evidence or arguments which would lead the Court to
reconsider this finding and they did not suggest that the involvement of the
President of the High Court (see paragraph 22 above) constituted an effective
domestic remedy. The Court and Court Officers Act 2002 was not in force at the
relevant time.
Accordingly, and for the reasons outlined in
detail in the above-cited Doran judgment, the Court also finds that
there has been a violation of Article 13 in conjunction with Article 6.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Pecuniary and non-pecuniary damage
The applicants claimed to have suffered
pecuniary loss submitting that the delays in the domestic proceedings resulted
in extra legal costs to them and referring, for example, to the need for
counsel to prepare for the appeal hearing a second time in February 1999. They
also claimed 1,000 euros (“EUR”) each in non-pecuniary damage for the
disappointment and worry caused by unnecessary delay in the proceedings.
As to the pecuniary damage claimed, the
Government argued that there was no causal link between the violation (delay)
and any pecuniary loss (additional legal fees); no attempt was made to identify
in the detailed bill of costs submitted those items of loss directly
attributable to the excessive length of the proceedings; no domestic
proceedings were pursued by the applicants to vindicate their Convention
rights; and there was no evidence that any additional fees could have been in
law or, indeed, were requested by counsel as a result of any additional
preparation necessary between February 1998 and February 1999.
As to pecuniary loss, the Court notes that,
while the applicants have submitted a detailed bill of costs in respect of the
domestic proceedings, they have not pointed to any specific and identifiable
costs incurred as a result of excessive delay. In these circumstances, the
Court considers that the applicants have failed to demonstrate a clear causal
connection between the legal costs claimed and the unreasonable length of
proceedings found to disclose a violation of Article 6 § 1 of the Convention
(see Barberà, Messegué and Jabardo v. Spain, judgment of 13 June 1994
(Article 50), Series A no. 285-C, §§ 16-20, and Çakıcı v. Turkey [GC],
no. 23657/94, § 127, ECHR 1999-IV). The Court makes no award in respect of
pecuniary loss.
Turning to the damages claimed for
non-pecuniary loss, the Court considers that the applicants must have suffered
some distress and frustration resulting from the delays in the proceedings,
which cannot sufficiently be compensated by the finding of a violation (see,
for example, Mitchell and Holloway v. the United Kingdom, cited above at
§ 69). Having regard to all the circumstances of the case and making its
assessment on an equitable basis, the Court awards each of the applicants the
sum of EUR 1,000 under this head.
B. Costs and expenses
The applicants submitted that they should be
awarded the costs of the domestic proceedings and of the proceedings before
this Court.
The Government maintained that the Court should decline to
make any award under this heading.
As to the costs
of the domestic proceedings, the Court notes the detailed bill of costs
submitted by the applicants. However, there is no evidence that any item was
actually and necessarily incurred in domestic proceedings in order to prevent
the violation or to obtain redress (see, for example, Le Compte, Van Leuven
and De Meyere v. Belgium, judgment of 18 October 1982 (Article 50), Series A no. 54). As to the legal costs incurred before this Court, the
applicants did not, despite specific requests from the Registry, submit any
detail concerning the legal costs incurred by them in pursuing their
application to the Court. However, it is considered that they must have
incurred some legal costs (see Migoń v. Poland, no. 24244/94,
§ 95, 25 June 2002) and the Court awards the applicants jointly EUR 400 in
respect of costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of
Article 6 § 1 of the Convention;
2. Holds that there has been a violation of Article 13
of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicants, within three months from the date on which the judgment becomes
final according to Article 44 § 2 of the Convention, EUR 1,000
(one thousand euros) each in respect of non-pecuniary damage and the total sum
of EUR 400 (four hundred euros) in respect of legal costs and expenses; and
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 29 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Georg
Ress
Registrar President
