ITEMID: 001-108023
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KONDRATYEV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1962 and is currently serving a prison sentence.
6. Between 4.25 and 5.30 p.m. on 27 July 2007 the police, in the presence of the applicant, searched his house and found drugs allegedly belonging to him. After the search the applicant was taken to the Leninskyy District Police Station of Sevastopol and questioned about the matter. He was not allowed to leave the police station. According to the Government, at an unspecified time on the same day the applicant was detained under Article 263 of the Minor Offences Code; no document concerning this has been made available to the Court.
7. At 7 p.m. on 28 July 2007 an investigator drew up a detention record, pursuant to Article 115 of the Code of Criminal Procedure (“the CCP”), regarding the applicant, who was suspected of drug dealing committed on 27 July 2007. The applicant was then placed in the Sevastopol City Temporary Detention Centre (Севастопольський міський ізолятор тимчасового тримання, “the ITT”).
8. According to the applicant, at the police station he was subjected to psychological pressure as a result of which he confessed to the possession of drugs and drug dealing.
9. On 30 July 2007 he was charged with drug dealing. Subsequently, new charges were brought against him and joined to the case. In particular, he was charged with the illegal possession of drugs in May-July 2007 and during his detention in Simferopol Temporary Investigative Isolation Unit no. 15 (Сімферопольський слідчий ізолятор № 15, “the SIZO”).
10. By a decision of 31 July 2007 the Leninskyy District Court of Sevastopol (“the District Court”) held that it was necessary to make further enquiries about the applicant and decided to remand him in custody for ten days. On the same date a lawyer of the applicant’s own choosing was given permission to take part in the proceedings.
11. On 1 August 2007 the Tuberculosis Healthcare Centre in Sevastopol (“the TB Centre”) issued a certificate indicating that the applicant had been registered there since 2000 and was suffering from “chronic infiltrative tuberculosis (“TB”) of the left lung (degeneration phase: MBT+)”, that he had undergone in-patient medical treatment from 2 to 13 March 2007 and “from 16 April to 28 July 2007, when [he had been] discharged [from the TB Centre] for a violation of therapeutic regimen”, and that it was appropriate for him to be held in cells for persons suffering from an active form of TB.
12. On 6 August 2007 the District Court remanded the applicant to the ITT pending his transfer to the SIZO, without any indication of how long he would stay there. It noted that the applicant had been convicted of drugrelated offences on several occasions, that he was suspected of having committed a serious crime, and that he had continued to engage in similar criminal activities after having served a prison sentence in October 2006. The court also took into account information obtained from the TB Centre about the applicant’s health condition.
13. According to the applicant, on 9 August 2007 he appealed against the remand order, stating in particular that he was not fit enough to remain in detention owing to the TB. On 29 September 2007 he lodged a complaint with the Leninskyy District Prosecutors’ Office of Sevastopol alleging that from 27 to 28 July 2007 his detention had been unlawful. There is no information as to the outcome of the appeal and complaint or indication that the complaint was received by the authorities.
14. On completion of the investigations the applicant’s case was referred for trial to the District Court, which, according to the applicant, held its first hearing in the case on 4 November 2007. According to the Government, this hearing was held on 1 November 2007.
15. On 15 May 2008 the applicant was transferred to the SIZO, but was periodically held at the ITT.
16. According to the applicant, on 17 June 2008 he lodged a complaint with the Leninskyy District Prosecutors’ Office and the District Court, again alleging that his detention from 27 to 28 July 2007 had been unlawful. No document concerning this has been made available to the Court.
17. In a judgment of 24 October 2008 the court found the applicant guilty of the illegal possession of drugs and drug dealing, sentenced him to two years and six months’ imprisonment and ordered the confiscation of all his property.
18. On 23 December 2008 the Sevastopol Court of Appeal (“the Court of Appeal”) quashed the judgment, finding that the first-instance court had not questioned the applicant on each of the charges against him, and it remitted the case to the latter court for fresh consideration. The Court of Appeal also ordered the applicant to remain in detention, without providing reasons or a time-limit for the continued detention.
19. In 2009 the applicant’s representative unsuccessfully tried to institute administrative court proceedings against the trial court, mainly for its failure to try the applicant in due time.
20. On 29 March 2010 the District Court ordered the Prosecutor’s Office of the Leninsky District to investigate the applicant’s complaints of psychological and physical pressure applied to him by unspecified police officers. On 31 March 2010 a prosecutor, having interviewed the police officers involved in the applicant’s arrest and having studied his detention documents, found the complaints unsubstantiated.
21. In a judgment of 6 April 2010 the District Court convicted the applicant on four counts of drug dealing and running a centre for the production and use of illicit drugs, while striking off one count for want of proof of a crime. The applicant was sentenced to five years’ imprisonment and the confiscation of all his property was ordered.
22. According to the parties’ last submissions, on 16 November 2010 the Court of Appeal upheld the first instance judgment. The applicant received a copy of the decision on 25 January 2011. There is no indication whether he appealed in cassation.
23. According to the Government, during the criminal proceedings the courts and police heard fifteen witnesses and seven other suspects. Five forensic examinations were carried out.
24. Out of the twenty-seven court hearings scheduled in the course of the proceedings, thirteen were held, while four were adjourned for unknown reasons, two were adjourned due to both witness’s failure to appear and the applicant’s convoy’s failure to bring him to the court, two were adjourned owing to the applicant’s convoy’s failure to bring him to the court, two were adjourned owing to the presiding judge’s sickness, and one each was adjourned owing to prosecutor’s vacation or his procedural request, the applicant’s studying the case file, both the presiding judge’s sickness and the applicant’s convoy’s failure to bring him to the court.
25. During the proceedings, the trial court ordered the police to escort witnesses for the hearings on 14 November 2007, 30 September and 9 November 2009. On the last-mentioned date the court adopted a separate resolution (окрема постанова), finding that the ITT had failed to escort the applicant to the hearings on a number of occasions. The court also requested the city police and prosecutors to ensure the applicant’s escort to hearings. The applicant failed to lodge one of his appeals properly; it is unspecified how that delayed the proceedings.
26. On 28 July 2007 the applicant informed the ITT that he had an active form of TB and was placed in a special cell. There is no indication whether the ITT had a medical practitioner on its staff.
27. On 8 February 2008 the TB Centre confirmed the applicant’s diagnosis and specified that he required a prolonged course of chemotherapy.
28. On 15 May 2008 the applicant was admitted to the TB ward of the SIZO and was prescribed “H, R, Z, E” (anti-TB drugs, see paragraph 57 below) and some “vitamins and hepatoprotectors”.
29. On 9 March 2009 the applicant fell down and injured his left knee while being transported to the ITT. He complained about it to the ITT administration. A doctor confirmed the injury and recommended, without specifying the degree of urgency, that the applicant consult a phthisiatrician.
30. When brought back from the ITT to the SIZO on 12 March 2009, the applicant was examined by the SIZO doctor, but raised no complaints about his health. According to a medical certificate of the SIZO doctor of 7 April 2010, "during the examination the applicant did not raise any complaints as he wished to get to his cell sooner".
31. On 18 March 2009 he complained to the SIZO doctor of severe left knee pain. On 20 March 2009 the doctor performed an X-ray examination and concluded that the knee cap was broken and displaced. According to the applicant, the SIZO provided him with no medical treatment in respect of that injury.
32. On 24 March 2009 he was examined by a doctor at the traumatology centre of Simferopol Town Hospital no. 6 (“the hospital”) and his knee was immobilised by a plaster cast.
33. On 2 April 2009 the applicant complained to the ITT administration about the injury to his left knee and subsequently was seen by an ambulance doctor.
34. According to the applicant, on 3 April 2009 the ITT ignored an ambulance referral for a medical examination of his knee and instead sent him to the SIZO. There is no indication he was advised such medical examination at the time.
35. On 3 June 2009 an X-ray of the applicant’s left knee revealed a closed fracture of the left knee cap, with some positive developments.
36. On 3 July 2009 the phthisiatrician of the TB Centre concluded that the applicant had “infiltrative TB of the upper part of the left lung (Category 4)”; it was recommended that he continue medical treatment for one and half month with “H, R, Z, E”.
37. On 7 July 2009 the traumatologist, having examined an X-ray of the applicant’s knee, found a healed fracture of the left knee cap and a contracture of the knee. According to him, the applicant did not need a surgical operation. The applicant was prescribed “a course of exercise therapy, Fastum Gel, and massage”. On 9 July 2009 the applicant was again seen by the traumatologist, who noted that he had already been prescribed adequate treatment in respect of the injury.
38. On 15 July 2009 the phthisiatrician found that the applicant had “infiltrative [TB] of the lungs (Category 4)” and recommended to continue taking “H, R, Z, E, and Levofloxacin”. The doctor indicated the appropriate dosage, frequency and duration for the drugs and also recommended some “vitamins and hepatoprotectors”.
39. On 28 September 2009 a doctor examined the applicant’s left knee and found no grounds for outpatient treatment or hospitalisation.
40. On 4 November 2009 a traumatologist examined the applicant and diagnosed him with a consolidated fracture of the left knee cap and a moderately expressed contracture of the left knee joint. He was prescribed medication and exercise therapy.
41. On 2 June and 20 August 2010 the phthisiatrician at the TB Centre examined the applicant, finding “post-TB residual changes and fibrosis in the upper part of the lungs (Category 5.1)”. He recommended that the applicant undergo repeated courses of anti-relapse therapy, whose particulars were not given. According to the applicant, the doctor’s conclusions of 2 June 2010 were not reliable for unspecified reasons.
42. On 20 August 2010 the applicant was discharged from the TB ward, which was unlawful, according to him, because he was still sick.
43. On 1 and 21 October 2010 the applicant began a course of antirelapse therapy. He agreed to take the medication, yet questioned the effectiveness of the therapy.
44. On 2 November 2010 a panel of doctors from the Crimea Medical Forensics Bureau, having studied the applicant’s medical records, including the one drawn up by the traumatologist on 26 October 2010, found that the left-knee fracture had healed, that there were no lasting residual effects of the injury, and concluded that the knee treatment provided by the Simferopol hospital had been timely and thorough.
45. While detained at the ITT, the applicant asked for medical assistance on 30 July, 14 and 23 August and 5 September 2007, 9 March, 31 March and 28 September 2009, and 1 April 2010. On each occasion the ITT administration called the ambulance, whose doctor came to see the applicant. His chest was X-rayed on 8 February and 15 May 2008, 23 January, 3 June and 10 July 2009, and 3 and 18 February, 2 June and 20 August 2010. The applicant underwent sputum tests on 16, 17 and 19 May, 1 July, 28 November and 1 and 2 December 2008, 23 and 24 January, 24, 25, 26 March, 4 June, 26 and 27 August and 22 September 2009, and 17 February and 20 August 2010, all of which were negative. On 4 June 2009 he underwent urine and blood analyses. According to the Government, during his detention in the SIZO the applicant received a high calorie diet and he was provided with some additional food. The applicant submitted that his food was poor and that there was no evidence he received medication and special food.
46. During his detention the applicant and his representatives lodged a number of complaints with the police, prosecutors, and courts alleging, inter alia, that the applicant was not receiving proper medical treatment. On 9 October 2009 the Sevastopol Prosecutor’s Office refused to institute criminal proceedings against the ITT duty officer in that regard. The applicant did not appeal. According to the Government, after June 2010 the applicant did not complaint about his state of health. According to the applicant, he complained but his complaints were not dealt with.
47. After a number of inquiries, on 4 November 2010 the Zaliznychnyi District Prosecutor’s Office of Simferopol refused to institute criminal proceedings against the head and the physician of the SIZO medical unit, the SIZO governor, and the head traumatologist of the Simferopol hospital. Apparently, the applicant did not appeal against that decision.
48. In 2010 the applicant’s mother instituted court proceedings against the prosecutors for their negligence in respect of her son’s TB infection. It appears that the proceedings are pending before an appellate court.
49. Article 155 provides:
“Persons in respect of whom taking into custody is imposed as a preventive measure are kept in places of detention pending trial, i.e., pre-trial detention centres [SIZOs]. In some cases, these persons may be kept in places for detained persons [ITT] ... for not more than three days. If transportation of remanded persons to the pre-trial detention centre ... is impossible within this time-limit because of the long distance or lack of appropriate roads, they may be kept in places for detained persons for up to ten days.”
51. According to the order, there are five main and five sub-categories for the recording of those who have TB or may be affected by it. For instance, patients with chronic TB of various localisation, with or without discharge of bacteria, fall into Category 4. Patients with residual changes of various localisation after the TB is cured fall into Category 5.1.
52. Under section 6.1, TB treatment is to be administered in specialised anti-TB institutions and to consist of two phases: main chemotherapy and rehabilitation. The main chemotherapy course, an extended, uninterrupted course of treatment, consists of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (isoniazid, rifampicin, streptomycin, pyrazinamide and ethambutol or “H, R, S, Z, E”).
53. Under section 6.6.1, to obtain maximal results, medical or surgical treatment of pulmonary TB is to be implemented in conjunction with individualized hygiene plan and regime (complete bed rest, part-time bed rest or a training regime). Treatment is to be followed by rehabilitation, including curative exercise, massage and physiotherapy.
54. According to section 6.6.2., the diet of a patient with TB infection must take into account his living and working conditions, general state of the organism, its reactivity, nature of any injury, and complications from other organs. The diet should be balanced, yet rich in proteins, minerals, and vitamins, in particular the C, E and B groups. The intake of carbohydrates should be within the norms, or lower if the patient is overweight.
55. According to section 6.7, pulmonary TB patients of all categories are to be regularly monitored. For instance, Category 4 patients are to be monitored using the following tests: sputum every month for six months, then every two months; sensitivity to the anti-TB drugs and X-ray – at the beginning and once every six months afterwards. The patients with Category 5.1 TB should undergo X-ray at least every six months during the first year of monitoring.
56. Regular mandatory examinations to determine the effectiveness of the TB treatment and timely registration of side effects and their treatment as set out in Table 15 of the Protocol should be carried out.
57. According to the Table 15, if such anti-TB drugs as isoniazid, rifampin, pyrazinamide, and ethambutol (“H, R, Z, E”) are administered, examinations and interviews of the patient, plus biochemical and common blood analysis, should be undertaken. The patient should also be examined by a neuropathist and ophthalmologist.
58. The pertinent parts of the Rules read as follows:
“... Scope and application
10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
Health care
39. Prison authorities shall safeguard the health of all prisoners in their care. ...
Organisation of prison health care
...
40.4 Medical services in prison shall seek to detect and treat physical ... illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
41.3 Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly. ...
Duties of the medical practitioner
42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ...
b. diagnosing physical ... illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ...
f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment;
43.1 The medical practitioner shall have the care of the physical ... health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
59. The pertinent parts of the Report read as follows:
“... Only the prisons setting has seen some progress in terms of decreased TB prevalence, TB notification rates, and TB mortality (although combined [Ministry of Health/ Sector Development Program]’s figures for mortality show an increase of 13% since 2003). These achievements are a result of progress made over the last five years to improve nourishment of inmates, increase drug supply and laboratory reagents, and provide better overall conditions in prisons (as a result of reductions made in the number of inmates). Also, severely ill patients have been released from the prison setting ... However, [Multiple Drug Resistant TB] in prisons is extremely high, at roughly 20% ... It is evident that since ... 1999, the reported cases of ... TB ... have seen a steady increase until 2006 with subsequent gradual decline as a result of steps taken by Government, including to double/quadruple the TB budget in 2006/2007/2008 vis à vis 2003/2004/2005 budgets. However, it should be noted that TB incidence in Ukraine remains one of the highest in the ECA region and is five times higher than the EU average ... The project did expand the laboratory network in the civil and the prison settings and with additional support from international and local donors and partners, as well as through Government own efforts, this network will be further improved.”
60. The domestic law pertinent to the issue of the lawfulness of the applicant’s detention is summarised in the judgments in the cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005II (extracts)); Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008); and Gavazhuk v. Ukraine (no. 17650/02, § 46, 18 February 2010).
61. Other domestic and international material concerning conditions of detention and treatment of TB infection in detention facilities can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-51, 28 March 2006, and Yakovenko v. Ukraine (no. 15825/06, §§ 53-54, 25 October 2007).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-100413
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF McFARLANE v. IRELAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Josep Casadevall;Ledi Bianku;Luis López Guerra;Nicolas Bratza;Peer Lorenzen
TEXT: 9. The applicant was imprisoned in Northern Ireland in 1975 for his involvement in a bombing for which the Irish Republican Army (“IRA”) was held responsible. On 25 September 1983 he escaped from prison.
10. In December 1983 a high profile kidnapping in Ireland ended in a gunfight with the security forces. The kidnapped man was released but a soldier and policeman were killed. A forensic report identified fingerprints found on items at the crime scene as those of the applicant. On 7 January 1984 an internal police circular was issued stating that the applicant was wanted on serious charges connected to the kidnapping.
11. In January 1986 the applicant was arrested in the Netherlands. In December 1986 he was extradited to Northern Ireland where he resumed serving his sentence. The Irish police did not interview the applicant about the kidnapping while in prison in Northern Ireland for the reasons later outlined by the Supreme Court (see paragraph 30 below).
12. From 1993 the applicant was granted periods of temporary release during which he visited Ireland. In January 1998 he was released on parole from prison in Northern Ireland.
13. On 5 January 1998 the applicant was arrested in Ireland by the Irish police under section 30 of the Offences Against the State Act 1939, as amended (“OASA”). He was questioned and charged before the Special Criminal Court (“SCC”) with offences relating to the kidnapping: false imprisonment, unlawful possession of firearms and kidnapping (a life sentence was the maximum prison term for the first and third charge). The SCC later noted (prior to dismissing the charges in 2008) that the evidence against the applicant was an admission he had made during his police interviews that he had been at the kidnap location (which admission he had denied in evidence before the SCC) as well as the fingerprint evidence.
14. On 5 January 1998 an official of the Department of Justice, Equality and Law Reform received a printed notice of the report of the applicant's arrest and he made handwritten notes thereon (“memorandum of 5January 1998”). The applicant submitted that those notes proved that the Irish police had been aware of his presence in Ireland prior to his arrest.
15. He applied for bail and on 13 January 1998 he was released on bail, subject to certain reporting conditions. The Supreme Court later noted that he had to sign on once a month at a police station in Ireland (a 160 km round trip from his home in Belfast) and that he had also to attend on approximately 40 occasions since 1998 at the SCC in Dublin (a round trip of 320 km) during the criminal proceedings against him.
16. On 14 July 1998 the Book of Evidence (statement of the evidence on which the prosecution proposed to rely) was served on the applicant. The Government maintained that the applicant informed the SCC on that date that he might bring judicial review proceedings to prohibit his trial on grounds of delay prior to his arrest.
17. Correspondence took place between the prosecution and the applicant from July 1998 to March 1999 on disclosure by the prosecution of any other relevant evidence not in the Book of Evidence: it concerned correspondence between the Irish and other authorities as regards his whereabouts prior to his arrest in 1998 and matters relating to the fingerprint issue. The case was put in for mention on the SCC list four times between October 1998 and 18 March 1999. On the latter date the disclosure issues were resolved with further disclosure by the prosecution.
18. It was through this disclosure process that the applicant was made aware of the loss (on a date between 1993 and 1998) of the items on which the original fingerprints had allegedly been found (“the original fingerprint evidence”). The forensic report (including photographs of the original fingerprints) was retained and available. The Government submitted that the applicant was informed of this loss on 15 January 1999.
19. A trial date was fixed for 23 November 1999.
20. The applicant then took expert advice as to the implications for his trial of the loss of the original fingerprint evidence. In October 1999 the expert advised that the fingerprint evidence could not be comprehensively evaluated from the forensic report retained.
21. On 1 November 1999 the applicant was granted leave to apply for judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. The relief sought by the applicant included a declaration that the delay until 1 November 1999 (mainly concerning the pre-arrest delay) was irreparably prejudicial to a fair trial, a declaration that the loss of the original fingerprint evidence limited his ability to contest the evidence against him as well as an order prohibiting his further prosecution on these bases. The return date for this application was 29 November 1999 and the trial date was vacated. The application was re-listed once a month (from December 1999 to March 2000) and on 5 April 2000 the prosecution filed its Statement of Opposition.
22. On 15 May 2000 the applicant requested voluntary discovery from the prosecution. No substantive response having been received, on 18 July 2000 he filed a notice of motion for such discovery. While the return date for the motion was in October 2000, the parties agreed to adjourn it to the first hearing date (12 January 2001). Neither party attended on that date, due to a misunderstanding, and the motion was struck out. The applicant submitted that he then sent several letters to the prosecution to obtain its consent to re-enter the motion: the Government accepted that one such letter from the applicant (of 29 May 2001) was on the file.
23. The applicant filed a fresh motion for discovery on 2 October 2001 and a return date was accorded (16 November 2001). On the latter date the prosecution agreed to make voluntary discovery and, on 8 February 2002, the prosecution filed an affidavit of discovery listing 93 documents in its schedule. This list included the memorandum of 5 January 1998 but the applicant did not request sight of that document at that point. On 1 March 2002 the applicant's motion for discovery was therefore struck out on a consent basis.
24. On 11 March 2002 the prosecution applied to re-enter the applicant's judicial review action and a hearing date was set for 14 March 2003.
25. The applicant then filed a motion for further and better discovery returnable before the Master of the High Court on 14 May 2002. The Master refused the order sought (11 June 2002) as did the High Court on appeal (on 22 July 2002).
26. When the prohibition action came on for hearing on 14 March 2003, a judge was not available to hear the case. It was adjourned to 11 July 2003, when it was heard.
27. On 18 July 2003 the High Court delivered an ex tempore judgment. The High Court made an order prohibiting the trial of the applicant on the basis that the loss of the original fingerprint evidence meant that there was a real or serious risk of an unfair trial. The High Court rejected the applicant's claim based on the delay: the decision to prosecute was a decision of the prosecuting authorities and depended on the sufficiency of evidence; there were no grounds to suggest that any delay was deliberate; and the decision to prosecute was prompted by new evidence (the applicant's alleged admission during questioning following his arrest in 1998).
28. On 19 August 2003 the prosecution appealed and the applicant lodged a cross-appeal. On 15 November 2004 the prosecution lodged the Books of Appeal. Since the High Court judge did not formally approve his judgment until 17 January 2005, the prosecution could not file a Certificate of Readiness (that the appeal was ready to be heard) until 27 January 2005.
29. On 2 February 2006 the applicant was granted leave to have his crossappeal heard with the prosecution's appeal. On 16 February 2006 the appeal hearing took place before the Supreme Court.
30. On 7 March 2006 the Supreme Court delivered its judgment allowing the prosecution's appeal and refusing the applicant's cross-appeal. As to the lost original fingerprint evidence, there had been a forensic examination of the fingerprints before they were lost and the results of that examination were preserved so that the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and he had therefore not demonstrated that there was a real risk of an unfair trial. As to the impugned pre-arrest delay, all five judges of the Supreme Court considered that that lapse of time was not such as should give rise to a prohibition order. The court considered it legitimate for the Irish police to have waited for his release from prison to arrest him under section 30 of the OASA. There was insufficient evidence to initiate a prosecution prior to his being questioned. The parameters of any questioning while he was in prison in Northern Ireland would have been entirely different from those applicable to a person arrested under section 30 of the OASA. In this latter respect, he was obliged to at least listen to the questions; the structure and duration of the questioning (subject to the proper treatment of persons in custody) would have been under their control and not under that of other (Northern Irish) authorities or that of the applicant himself; and, in the end, he made some statements during questioning which provided additional evidence and, consequently, a basis to initiate a prosecution. Kearns J partly dissented as regards the loss of the original fingerprint evidence only: in doing so he referred to the advice on the issue of the applicant's expert.
31. Following this judgment, the stay on the criminal proceedings pending the first prohibition action was lifted. On 4 April 2006 the SCC fixed the applicant's trial for 3 October 2006.
32. On 15 May 2006 the applicant was granted leave by the High Court to seek judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. He sought a declaration and a prohibition order on the basis that the delay since 1 November 1999 (namely, during his first prohibition action) had delayed the criminal proceedings which had, inter alia, violated his constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial.
33. On 8 November 2006 the High Court refused the prohibition application. It considered that, at best, the evidence demonstrated at most three periods of unnecessary delay by the prosecution during the first judicial review action. However, any increased stress or culpable delay and impact on his right to an expeditious trial did not outweigh the community's considerable interest in having offences of such gravity prosecuted.
34. The applicant appealed by notice dated 22 February 2007. The Supreme Court heard the appeal on 24 January 2008. On 5 March 2008 judgment was delivered dismissing the appeal unanimously. Fennelly J., Kearns J. and Geoghegan J. delivered separate judgments, with Hardiman J. and Macken J. concurring.
35. Fennelly J. noted that, while the applicant had included in his motion a request for “any further and/or other relief as this Honourable Court deems meet and just”, the only substantive relief specifically and explicitly sought by him was the prohibition of his trial on grounds of delay. Such a prohibition could only be granted if there were a real risk that his trial would be unfair, and this had been rejected in the first judicial review proceedings as regards the delay prior to the preferment of charges and was undemonstrated as regards the length of the first judicial review proceedings.
36. However, Fennelly J. noted that the courts had also recognised the possibility of making a prohibition order for the quite distinct reason that there had been a breach of an accused's right to trial with “reasonable expedition”. Noting that the judgment of Powell J. in Barker v. Wingo ((1972) 407 U.S. 514) of the Supreme Court of the United States had been influential in the development of the case-law of the Irish courts on the right to reasonable expedition and the consequences of its breach, Fennelly J. stated that “we have now established a consistent approach, particularly in some recent cases”.
37. Referring to the approach of Keane CJ in P.M. v Malone ([2002] 2 I.R. 560) and to the reiteration of that approach by Kearns J. in P.M. v DPP ([2006] 3 I.R. 172), Fennelly J. considered that it was necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant's right to a trial with due expedition and, secondly, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the Director of Public Prosecutions (“DPP”) from continuing with his prosecution.
As to the first question, Fennelly J. considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment (July 2003-January 2005). However, the applicant had taken no steps to expedite the appeal, probably because of the High Court prohibition order. While this delay was significant, in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him.
As to the second question, and even assuming there had been a breach of his constitutional right to an expeditious hearing, the circumstances did not warrant a prohibition order: any delay of 1-2 years was not significant in the trial for offences alleged to have been committed in 1983. As to his anxiety caused by delay, he was, during that period of delay, the holder of an order of the High Court prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them. In addition, the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review.
38. Finally, Fennelly J. noted that the right to a trial within “a reasonable time” and to a trial “with reasonable expedition” were “indistinguishable”. However, he differentiated between this Court's finding of unreasonable delay under Article 6 (with an award of just satisfaction), on the one hand, and the balancing exercise a domestic court had to carry out between delay and the public interest in pursuing crime in a prohibition action on grounds of delay (the domestic proceedings), on the other. This Court's role (and therefore the criteria used by it) was more analogous to the decision as to whether delay violated the constitutional right to expeditious proceedings. He noted the Government's submission to this Court in Barry v. Ireland (no. 18273/04, § 35, 15 December 2005) to the effect that judicial review was an effective domestic remedy and that “damages might have been available” on judicial review. Having noted this Court's response to that argument (paragraph 53 of the Barry judgment), he continued:
“74. I made a similar observation in my own judgment in [T.H. v DPP].
These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and [P.M. v DPP]. That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland ..., the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted):
'....... On the latter point, what is at stake for the applicant in the litigation has to be taken into account.'
75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court's response to that argument (at paragraph [53]) was:
'There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available ... .'
76. ... in [the Barry] case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, [if they were claimed]. Any such claim would have to be made in the High Court in the first instance. The [European Convention of Human Rights Act 2003] might be relevant.
77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in [Barry v DPP], which ... [the Court] also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the [European Convention of Human Rights Act 2003] may or may not be relevant.”
39. Kearns J. agreed in the main with Fennelly J.'s judgment. He explained, in addition, the various forms of delay in criminal proceedings:
“This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. ...
That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called 'prosecutorial delay', may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.
Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. 'Systemic delay' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen's constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular Article 6 thereof ...
In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay.....”
40. Kearns J. assessed the criteria by which prosecutorial delay would be measured (a test which he considered reflected that of this Court) and found those principles equally applicable to systemic delay (described as “failures of the criminal justice system”). Prior to applying the test, he made a number of preliminary comments, notably to the effect that degrees of dilatoriness which may have been acceptable in the past could no longer be tolerated since the European Convention of Human Rights Act 2003 (“the 2003 Act”) gave effect in Ireland to the provisions of the Convention: both the constitutional and Convention rights to trial with reasonable expedition had to be “vindicated by being given real effect”.
41. However, that did not mean that the prohibition of a criminal trial had to be resorted to more readily and Kearns J. pointed to the difference between the role of this Court under the reasonable time requirement of Article 6 § 1 and its award of just satisfaction and that of the domestic courts in prohibition proceedings where unreasonable expedition had to be balanced against the public interest in continuing with a prosecution. Given this added element in the domestic prohibition proceedings, prohibition should only be granted exceptionally and where there was an assessed serious breach of the rights under Article 38(1) of the Constitution and of Article 6 § 1 of the Convention. In so noting, Kearns J. referred to other domestic remedies as follows:
“I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case.”
42. As to whether there was blameworthy delay, Kearns J. hesitated on the same period of delay (noted by Fennelly J.) in approving the High Court judgment but he did not consider that “blameworthy” given the absence of evidence that it deviated from the norm. Accordingly, even given the passage of time since the original alleged offence and a consequent “heightened degree of urgency in advancing this prosecution”, it was not considered that the applicant had established blameworthy prosecutorial or systemic delay. Even assuming he had, Kearns J. was satisfied that there was no demonstrated prejudice to the applicant or impairment of his other rights including the constitutional right to a trial in due course of law. As regards the motion struck out on 12 January 2001, Kearns J noted that the applicant had not done anything about re-entering it for four months and that it had taken eight months to re-enter the motion. As regards discovery by the prosecution in February 2002, Kearns J noted that this affidavit listed 93 documents and was clearly the result of “considerable effort”.
43. Geoghegan J. broadly agreed with those judgments. He considered that no important issue of “systemic delay” arose in the present case and he reserved his view on its nature and relevance for a future case, though noting that the rather new concept of systemic delay was not the same thing as prosecutorial delay. He suggested that an inadequate number of judges would, if anything, be a reason to assess a longer delay as reasonable in the circumstances, although he acknowledged that that view might not accord with the Convention. The Convention's jurisprudence in Irish cases was not sufficiently clear as to the correct approach to systemic delay and, notably, as to the blameworthiness of a State for systemic delay: could, for example, a State be blamed for diverting limited economic resources to a hospital as opposed to judicial institutions? In any event, the present case was not the appropriate one to examine systemic delay as none of the impugned periods of delay warranted a prohibition order. As to the lapse of time in approving the High Court judgment, he found it unnecessary to consider whether this delay should be taken into account in considering whether a trial should be prohibited because he was “quite satisfied that prohibition would not be appropriate in this case at any rate”.
44. Following this judgment, the stay on the criminal proceedings pending the second prohibition action was lifted. On 14 March 2008 the criminal proceedings were reinstated before the SCC when the trial date was fixed for 11 June 2008. The memorandum of 5 January 1998 (paragraph 14 above) was again disclosed as additional evidence on 16 June 2008.
45. On 26 June 2008, and following a ruling by the SCC that the principal evidence in the case (the alleged admission of the applicant during police questioning) was inadmissible, the prosecution indicated that they did not propose to adduce further evidence and the charges were dismissed.
46. The applicant introduced a second application to this Court in April 2008 in which he complained under, inter alia, Articles 6 and 13 about the length of the criminal proceedings against him and about the lack of an effective domestic remedy in this regard. Referring to the general time-line of events since 1983, he mainly complained about delay during the first prohibition action. That application has not been joined to the present one.
47. Article 35(2) of the Constitution reads as follows:
“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”.
48. Article 38(1) of the Constitution provides that:
“No person shall be tried on any criminal charge save in due course of law”.
49. Article 40(3)(1) of the Constitution also provides that:
“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.”
50. Section 46 of the 2002 Act provides that the Courts Service shall establish and maintain a register of judgments reserved by, inter alia, the High and Supreme Courts in civil proceedings and supervise the delivery of those judgments within prescribed periods. This Act entered into force on 31 March 2005.
51. The background and terms of reference of this Working Group were outlined in its Report as follows:
“In recent years there have been significant changes in Irish society. Ireland's population has grown from 3.5 million in 1991 to over 4.2 million in 2006. There has been an increase in economic activity and demographic diversity. Changes in social and public policy have occurred. International developments now have a greater impact on Irish affairs and the courts.
These changes have had important implications for the Irish legal system. In particular, the High Court and Supreme Court have experienced a significant expansion in litigation.
Despite the relative success of the courts in introducing procedures to deal with these developments, the current Superior Court structure was not designed to cope with developments of such a profound nature. There has been a need for some time to conduct a strategic review of the current Superior Court structure.
In December 2006 the Government decided to set up a Working Group to consider the question of establishing a Court of Appeal, with the following terms of reference:
'(a) to review and consider the necessity for a general Court of Appeal for the purpose of processing certain categories of appeals from the High Court.
(b) to address and consider such legal changes as are necessary for the purposes of establishing a Court of Appeal, and
(c) to make such other recommendations as are appropriate for the purposes of ensuring greater efficiencies in the practices and procedures of the Superior Courts.'
52. The Report recommended the establishment of a Court of Appeal in order to, inter alia, eliminate undue delay in processing appeals before the Supreme Court. The Report described the increase in High and Supreme Court litigation and the backlog this had created particularly at the Supreme Court level:
“The Supreme Court has seen a significant increase in the volume and complexity of its appellate caseload. Unsurprisingly, this greater volume of cases has created a backlog of appeals in the Supreme Court. This has led to longer delays in the Supreme Court, with some cases now taking as much as 30 months to get a hearing .... A delay in determining these appeals can cause uncertainty for individuals, for businesses and for government. It can put unnecessary emotional and financial pressure on litigants. It leaves others unsure about the law, which inhibits their ability to organise and plan their affairs. In short, delays create confusion and costs and are bad for business. This situation poses serious problems for the Irish legal system and for Irish society as a whole.”
53. The Report recorded the average delays in obtaining a hearing before the Supreme Court as follows: 2003 (4 months), 2004 (10 months), 2005 (14 months), 2006 (22 months), 2007 (26 months) and 2008 (30 months).
54. Chapter 4 of the Report is entitled “Time-limits and International Obligations” and noted that Ireland had been found in breach of Article 6 of the Convention (McMullen v. Ireland, no. 42297/98, 29 July 2004; Doran v. Ireland, no. 50389/99, ECHR 2003X (extracts); O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004; and Barry v. Ireland, cited above). It noted that a common feature of those cases was that they involved litigation in which the violations of Article 6 were, in large part, attributed to delays occurring as a result of a shortage of judges, relative to the caseload of the courts. This underlined the fact that any logistical difficulties encountered by the courts might result in a breach of Ireland's obligations under the ECHR.
55. As to Ireland's efforts to comply with its Convention obligations, the Report continued:
“The increase in judicial appointments to the High Court has alleviated these difficulties at that level. As this chapter has already noted, however, the fact that the two-division Supreme Court is obliged to deal with all Superior Court civil appeals means that there is a significant risk of delays of the sort impugned in McMullen, Doran, O'Reilly and Barry occurring at appellate level.
...
The European Court of Human Rights has identified delays caused by the courts themselves (as a result of logistical pressures) as the key factors offending the requirements of Article 6 in each case. Violations have been found, as in [Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, 29 July 2003], where the courts themselves were held to have acted reasonably in respect of the relevant proceedings. The State is obliged to organise its system to avoid the risk of parties unduly delaying their proceedings. It must also therefore be required to ensure that the structure of the legal system itself does not generate undue delays. The institutional bottleneck at Supreme Court level has just such an effect on our system.”
56. In the case of Ivor Sweetman v. the DPP, the Minister for Justice, Equality and Law Reform and the Attorney General ([2005] IEHC 435), the High Court granted a prohibition order to stop a prosecution concerning events which took place in 1966. In so finding, the High Court commented:
“Despite the absence of any explanation for the delays already enumerated it is clear that some part at least of this delay was caused by the overwhelming pressure on the, then, inadequate facilities of the legal system. The government had an obligation to “organise [its] legal system so as to enable the courts to comply [with the requirements of Article 6 § 1] ...
... significant improvements have been made in court waiting times through better management and facilities and the systemic delays of that period are now, thankfully, a thing of the past.”
57. On an application for leave to apply for judicial review, the High Court (and on appeal, the Supreme Court) can prohibit a prosecution on the basis of delay considered to constitute a real and serious risk of an unfair trial. This does not exclude the inherent and constitutional duty of the trial court to ensure that there was a fair trial and to stop a trial if matters arose which rendered it unfair (DPP v. O'C [2006] IESC 54).
58. A trial can also be prohibited on the basis of a breach of the right of an accused to trial with “reasonable expedition” (State (Healy) v Donoghue [1976] I.R, Gannon J.).
59. In P.M. v. Malone (cited above) Keane C.J. reviewed recent Irish cases on the subject. He found that “in determining whether the concern and anxiety caused to an accused person is such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated, the court, depending entirely on the circumstances of the particular case, may be entitled to take into account, not merely delay subsequent to his being charged and brought to trial, but also delay prior to the formal charge.” He went on to identify as the essential issue being whether, assuming a breach of the constitutional right to a reasonably expeditious trial, the prohibition of the trial was justified. He answered that question as follows:
“Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
60. The Supreme Court reiterated that approach in P.M. v DPP (cited above). Kearns J, speaking for a unanimous court, cited the above judgment of Keane C.J. Having done so, he continued:
“I believe that the balancing exercise referred to by Keane C.J in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”
61. In T.H. v. DPP ([2006] 3 IR 520) the applicant had been charged in 1996 with sexual assault alleged to have occurred in 1995. He was granted leave to seek judicial review as regards a number of issues arising from the prosecution of the case. The High Court dismissed his judicial review proceedings but nevertheless granted a prohibition order on the grounds that the blameworthy delay by the prosecution in conducting the judicial review proceedings had denied the applicant his right to a criminal trial with reasonable expedition. The DPP appealed to the Supreme Court which allowed the appeal finding that, where inordinate delay did not jeopardise the applicant's right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the applicant's right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences. Fennelly J., with whom the other judges of the Supreme Court concurred, stated:
“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court that it does recognise the public interest in prosecuting crime (see Kostovski v Netherlands [1989] 12 EHRR; [Doorson] v Netherlands 22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.
In brief, the decision in Barry v Ireland adds nothing to the applicant's claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding.”
62. The later case of J.B. v. DPP ([2006] IESC 66) concerned the accused's application for an order prohibiting his criminal trial (on numerous charges of sexual assaults on his nieces between 1971 and 1987) on the basis of delay in the institution and prosecution of the charges. He was only partially successful before the High Court and he unsuccessfully appealed to the Supreme Court. Having reviewed the pre-conditions for an order of prohibition and noted that there “may be other remedies”, Judge Denham noted the above-quoted reference of Fennelly J. (in T.H. v. DPP) to Barry v. Ireland and, notably, the sum of money awarded in just satisfaction. Hardiman J. also stated that:
“I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.”
63. In Devoy v. DPP ([2008] IESC 13) the accused alleged prosecutorial delay in pursuing firearms and criminal damage charges against him. The High Court (in 2006) granted the prohibition order and the Supreme Court (delivering its judgment in the month following the judgment of the Supreme Court in the present case) allowed the DPP's appeal.
Kearns J. recalled and summarised the principles governing prosecutorial delay in Irish law (laid down in the above-cited cases of P.M. v. Malone and P.M. v. DPP) as follows:
“(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant's constitutional entitlement to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in [the above cited case of P.M. v. Malone and P.M. v. DPP] are demonstrated.
(d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition.
...
When applying the test, the court must, however, keep certain considerations in mind. On the one hand, the court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since the European Convention on Human Rights Act 2003 gave effect in this jurisdiction to the provisions of the Convention, including the right under Article 6 to a trial with reasonable expedition. This right must be given real effect.
In the context of prohibition this is not to say that an Irish court must readily or too easily resort to prohibition, whatever about other remedies, when vindicating rights under Article 38.1. Under our jurisprudence, ..., prohibition is a remedy to be granted only in exceptional circumstances. The Court does not adopt a punitive or disciplinary role in this context. Further, any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when exercising this jurisdiction. It must analyse the causes for delay with great care, weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay. In this context not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry by the court under P.M. v. DPP or Barker v. Wingo. In my view an applicant should ordinarily adduce and place before the court some evidence of what is the norm in terms of time taken for the particular proceedings or the identified process or processes within it which are the subject matter of complaint. This is information which is readily available from the Courts Service with regard to various forms of proceedings.”
Denham J began her judgment noting that the case, raising issues of delay in prosecuting criminal offences, was one of a number of cases which had been decided in the High Court (2006) at a time when the jurisprudence was being clarified by the Supreme Court. Finding that the High Court had not applied the correct test as regards prosecutorial delay, Denham J referred to the restatement of the law in P.M. v. DPP (cited above):
“This test requires that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the Court, this step was not taken by the High Court. To prohibit a trial, in addition to the finding of blameworthy prosecutorial delay one or more of the interests protected by the right to an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief. The bar of the test is high because this is a very significant relief - an order prohibiting the public prosecutor from prosecuting an accused.
In this case the second step required by the test was not taken. Indeed the learned trial judge stated that the applicant did not complain of any specific prejudice, and that he did not complain that his right to a fair trial had been impaired by the delay.”
64. In Kemmy v. Ireland and the Attorney General ([2009] IEHC 178) the Court of Criminal Appeal set aside the applicant's conviction for rape and sexual assault on the grounds that the manner in which his trial had been conducted rendered his trial unfair. A retrial was not ordered. However, by that date the accused had served his sentence and had been released. Not being entitled to damages under section 9 of the Criminal Procedure Act 1993 (his conviction was not quashed on the grounds of a miscarriage of justice), he took proceedings against the State claiming essentially damages for a breach of his constitutional right to a fair trial. In dismissing the application, the High Court found that the State could not be vicariously liable for errors which a judge may commit in the administration of justice nor could a plaintiff sue the State on other grounds as regards the failure by the trial judge to ensure a fair trial. In addition, the High Court opined that, in any event, the immunity conferred by law on the judiciary also applied for the benefit of the State when an attempt was made to render the State liable for the wrongs of a judge. The High Court stated:
“I am of the view that many of the reasons which support personal judicial immunity – the promotion of judicial independence, the desirability of finality in litigation, the existence of an appeal and other remedies as well as the public interest – can also support the argument for State immunity in cases such as those before this Court. Indeed it is my view that not to extend the immunity to the State in the present circumstances would represent an indirect and collateral assault on judicial immunity itself.
To make the State liable in such a situation would indirectly inhibit the judge in the exercise of his judicial functions and this, in turn, would undermine his independence as guaranteed by the Constitution. It would introduce an unrelated and collateral consideration into the judge's thinking which could prevent him from determining the issue in a free unfettered manner. It might, for example, encourage the other organs of government to monitor the conduct of the judges in this regard, thereby resulting in “a chilling effect”.
The fundamental reason for supporting this conclusion, however, is that when the judge is exercising judicial authority he is acting in an independent manner and not only is he not a servant of the State in these circumstances, he is not even acting on behalf of the State. He is not doing the State's business. He is acting at the behest of the people and his mission is to administer justice. ...
... The plaintiff's case might be advanced to another stage by arguing that the above line of reasoning, which recognises personal immunity for judges and State immunity for the majority of wrongs committed by judges in the administration of justice, does not apply when the constitutional rights of the individual are at stake. I cannot agree. If one were to accept that line of argument one would have to acknowledge that the immunity given to judges personally would also have to yield in such situations. ...
In my view, the acceptance of personal immunity for the Judiciary must logically extend to the State when sued directly for judicial error even when a fundamental right is asserted. That this immunity is not specially recognised in the Constitution, is no impediment, since the State immunity in these circumstances is a corollary of the personal immunity conferred on the judges and the State immunity can be inferred from the personal immunity long since recognised by our courts, though not explicitly acknowledged in the Constitution.”
65. This Scheme provides payment for legal representation in cases not covered by the civil or criminal legal aid schemes. It is an ex gratia scheme set up with funds made available by Parliament. Special rules apply which are contained in the Scheme itself including, the following.
66. The Scheme applies to the following forms of litigation: (a) habeas corpus applications; (b) bail motions; (c) such judicial review application as consist of or include certiorari, mandamus or prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue; and (d) applications under section 50 of the Extradition Act 1965, extradition applications and European Arrest Warrant applications.
67. The purpose of the Scheme is to provide legal representation for persons who need it but cannot afford it. It is not an alternative to costs. Accordingly, a person wishing to obtain from the court a non-binding recommendation to the Attorney General that the Scheme be applied must make his or her application, personally or through his or her lawyer, at the commencement of the proceedings and must obtain the recommendation at the commencement of the proceedings.
68. The applicant must satisfy the court that he or she does not have the means to pay for legal representation and that the case warrants the assignment of legal representation.
69. The Legal Aid Board provides legal advice and legal aid for non-criminal matters to those who satisfy the requirements of the Civil Legal Aid Act 1995. In order to obtain legal aid, a person must have limited means and merit to their case and their case must not be one of the categories excluded by section 28(9) of the 1995 Act. None of the categories listed excludes an action for damages for breach of the constitutional right to reasonable expedition.
70. During the preparation of its “Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”, the Venice Commission provided a questionnaire to Contracting States. The questions as well as the responses of the Irish Government, in so far as relevant, are set out below:
“4. Is any statistical data available about the extent of this problem in your country? If so, please provide it in English or French.
The Courts Service is responsible for the management of courts. Average waiting times in each court for 2005 are as set out below. Provision is made to accord early hearing dates to urgent and emergency matters. The average times are as follows:
Supreme Court 14 months from lodgement of a certificate of readiness to hearing date (earlier hearing dates are allocated by the court for urgent cases).
...
Judicial Review (excluding asylum) 15 months (cases taking less than 2 hours will be dealt with sooner). ...”
“5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what - ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French.
Criminal
In the criminal context an accused can take Judicial Review proceedings seeking an order for prohibition against the prosecution on the ground of delay. This application is to be made before the High Court by an accused and must be made 'promptly' [Connolly v DPP 15th March 2003, HC, Finlay Geoghegan J.]. The Court has an inherent jurisdiction to prohibit a prosecution where there is unreasonable delay.
Civil
In the civil context defendants may seek an order for dismissal for want of prosecution in circumstances where there has been delay on the part of the Plaintiff. This application is made to the courts.
In O'Donoghue v Legal Aid Board [21st December 2004, High Court, Kelly J.] the High Court held that the applicant in family proceedings could obtain a declaration of breach of rights under Article 40.1.3 and be awarded damages for delay in the State providing her with legal aid. This case was not appealed to the Supreme Court.
Under the [2003 Act] an applicant may apply to the High Court for damages if an organ of State has not fulfilled its obligations under the Convention. Under that legislation the courts are excluded from the definition of organ of State but delay by the DPP or other State agents or agencies might give rise to this remedy.
Under the [2002 Act] section 46, if judgment has not been delivered within a prescribed period the Courts Service will list the matter before the relevant judge and at that time the Judge must fix a date by which time judgment will be delivered.
According to a procedure initiated in 1996 any litigant who has a complaint in relation to delay must address it formally to the President of the High Court. However, the [ECHR] in [O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004] found that this did not constitute an adequate remedy.
The Courts themselves employ a system of case management and judges seized of a case will set deadlines by which time the parties are required to have submitted or served documents. Legislation, including the Statute of Limitations 1957, stipulates the period in which applicants must take proceedings, before they become 'statute barred'.”
“7. Is there a cost (ex. fixed fee ) for the use of this remedy?
Generally, costs follow the event of the trial i.e. they are awarded to the winning party. However, awards may be made to a particular party in relation to specific interlocutory proceedings.”
“10. What are the available forms of redress:
- acknowledgement of the violation YES
- pecuniary compensation
o material damage YES
o non-material damage YES
- measures to speed up the proceedings, if they are
still pending YES
- possible reduction of sentence in criminal cases NO
- other (specify what)
In criminal proceedings if Article 38.1 is held to have been breached because of delay, an order of prohibition will be granted directing that the prosecution be restrained. Similarly, in a civil action if a Defendant successfully argues that Article 40.1.3 has been violated by reason of delay the claim will be dismissed for want of prosecution. In a judgment in the High Court a Plaintiff in a civil matter complain successfully about delay and declaration of breach of rights and damages were awarded. In the case of PP v DPP [2000] 1 IR 403] it was held that, although a breach of constitutional rights in the context of criminal proceedings had not been made out, any further delay would not be tolerated and the courts should not permit it to occur.
In criminal proceedings if an accused has been in custody pending trial, the period spent in custody will be set off against a sentence imposed.
11. Are these forms of redress cumulative or alternative?
Generally, proceedings will be restrained where unacceptable delay has been shown to exist. A declaration of breach of rights has been accompanied by an award of damages in a civil case.
12. If pecuniary compensation is available, according to what criteria? Are these criteria the same as, or linked with, those applied by the European Court of Human Rights? Is there a maximum amount of compensation to be awarded?
In O'Donoghue v Legal Aid Board damages were calculated with regard to the loss suffered by the applicant ...and stress and upset caused.
13. If measures can be taken to speed up the proceedings in question, is there a link between these measures and the general case-management of the relevant courts? Is the taking of these measures co-ordinated at a central or higher level? On the basis of what criteria and what factual information concerning the court in question (workload, number of judges, nature of cases pending, specific problems etc.) does the competent authority order such measures?
No”
“18. Is there any statistical data available on the use of this remedy? If so, please provide them in English/French.
Not applicable.
19. What is the general assessment of this remedy?
Not applicable
20. Has this remedy had an impact on the number of cases possibly pending before the European Court of Human Rights? Please provide any available statistics in this connection.
Not applicable
21. Has this remedy been assessed by the European Court of Human Rights in respect of Articles 13 or 35 ECHR? If so, please provide reference to the relevant case-law.
The remedy available before this development was considered by the European Court of Human Rights in the cases of [Barry v Ireland, cited above, Doran v. Ireland, no. 50389/99, ECHR 2003X (extracts); O'Reilly v. Ireland, cited above; and McMullen v. Ireland, no. 42297/98, 29 July 2004]. In each of these decisions Ireland was found to be in breach of the Convention for failure to provide an adequate remedy for delay.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23303
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: LYONS AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants, Mr Isidore Jack Lyons, Mr Gerald Maurice Ronson and Mr Anthony Keith Parnes are United Kingdom nationals, who were born in 1916, 1939 and 1945 respectively. The first applicant lives in Switzerland. The second and third applicants live in London. The applicants are represented before the Court by Stephenson Harwood, Solicitors, London.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In its judgment (Merits) of 19 September 2000 in the case of IJL, GMR and AKP v. the United Kingdom (nos. 29522/95, 30056/96 and 30574/96), the Court found that the respondent Government had breached the applicants’ right to a fair hearing since a significant part of the prosecution case against them consisted of the transcripts of the interviews they gave to Department of Trade and Industry Inspectors (“the Inspectors”) under statutory compulsion. These interviews were conducted during an investigation into the applicants’ alleged dishonest conduct in the context of a share support operation in the course of a take-over bid in 1986. The statutory basis for requiring the applicants to reply to the Inspectors’ questions was contained in section 434 of the Companies Act 1985.
The Court noted in its judgment that the transcripts of the applicants’ interviews were read out to the jury by the prosecution over a three-day period and were used in a manner intended to incriminate the applicants. The Court concluded that, in the circumstances, there had been an infringement of the right not to incriminate oneself and thus a breach of Article 6 § 1 of the Convention (see §§ 82 and 83 of the judgment and point 1 of the operative provisions).
The Court rejected the applicants’ claim for pecuniary loss on the ground that it could not speculate as to the question whether the outcome of their trial would have been any different had use not been made of the transcripts (§ 146 and point 6 of the operative provisions).
On 14 April 2000 an amendment was made to section 434 of the Companies Act 1985 via the enactment of the Youth Justice and Criminal Evidence Act 1999. The amended provisions came into force pursuant to SI No. 1039/1999. As a result of that amendment, the prosecution can no longer use in evidence as part of its case or in cross-examination answers obtained under compulsory powers.
Following the Court’s judgment the applicants succeeded in having their cases referred back to the Court of Appeal by the Criminal Cases Review Commission (“CCRC”) under section 9 of the Criminal Appeal Act 1995. The CCRC reasoned its reference decision as follows:
“If [the applicants’] replies to the compulsory interviews had been excluded from evidence, the jury would have been presented with a substantially different case to consider. The use of those interviews by the Crown had been identified by the European Court of Human Rights as having given rise to unfairness in the trial. The developments which have taken place since [the applicants’] previous appeal suggest to the Commission that there is a real possibility that the Court might now regard the unfairness identified by the ECHR as a shortcoming of such gravity that doubt is cast on the safety of the conviction.”
In the proceedings before the Court of Appeal the applicants contended that retrospective effect should be given to the Human Rights Act 1998 (“HRA”) so as to allow them to base a challenge to the fairness of their trial on Convention grounds, notwithstanding that their trial took place many years before its coming into force (20 October 2000). The Court of Appeal considered that the applicants’ argument was excluded in the light of the House of Lords decision in R. v. Lambert ([2001] 3 WLR 206). In that decision, which was later criticised but confirmed by the House of Lords in the case of R. v. Kansal ([2002] 2 AC 69), the House of Lords ruled that the HRA did not enable an applicant to rely, during the course of a hearing held after the date on which the Act came into force, on a breach of a Convention right which had occurred during a trial that had concluded before that date.
The applicants also contended that the Court of Appeal was required to recognise and give effect to the judgment of 19 September 2000 as a consequence of the United Kingdom’s obligations under Article 46 of the Convention to abide by that judgment and to afford restitutio in integrum for the breach identified by the European Court of Human Rights. In concrete terms, that meant conducting a reconsideration of the safety of the applicants’ conviction without reliance on the evidence which the European Court found to have been admitted in breach of Article 6 of the Convention. The applicants relied on, among other materials, Recommendation No. R(2000)2 of the Committee of Ministers on the re-examination or re-opening of certain cases at domestic level following judgments of the European Court of Human Rights.
In giving the judgment of the Court, the Vice-President, Lord Justice Rose, observed that during the course of argument, the court had indicated that:
“... we concluded that the compelled answers should not have been admitted in evidence, or if we concluded that we were bound to give effect to the Strasbourg Court’s decision that the trial was unfair by examining anew the safety of the convictions, we would not uphold the convictions on the basis that they are unsafe in any event.”
Lord Justice Rose further stated:
“In our judgment, the State’s obligation under Article 46 to abide by the judgments of the ECtHR does not confer any right on these appellants. In any event, we doubt whether Article 46 requires the re-opening of convictions. This is not expressly or implicitly required by Article 46 and there is nothing in the Strasbourg jurisprudence to suggest that there is any such obligation. It is to be noted that the ECtHR made a declaration of violation in relation to each of these appellants. That declaration can be, and is regarded by the ECtHR as amounting to, sufficient just satisfaction. That court could have awarded damages but did not do so. It made an award of costs which the United Kingdom has paid in fulfilment of the judgment of the court. There is no suggestion in the ECtHR’s judgments that that court regarded the remedy of declaration and costs as insufficient, irrespective of what might or might not occur domestically. This is so even though the English courts (whatever may have been the position in other countries) have not, before the HRA, re-opened convictions solely because of a Strasbourg finding of unfairness. Assuming, at the highest from the appellants’ point of view, that the Strasbourg findings entitle them to have their convictions re-opened by this court, that would simply mean, in view of the other evidence against them, that their convictions would be quashed and a retrial ordered. This is not a case in which, in relation to any appellant, the prosecution case was dependent solely on the compelled answers: there was and is substantial other evidence against each of them. It may be, given the lapse of time in this case and other considerations, that a retrial would not, as a matter of discretion, be ordered – indeed we so indicated during the hearing. That does not detract from the point that in principle in a case such as the present where what is complained of is the use of compelled evidence but there exists other evidence on the basis of which a jury might equally have convicted, restitutio in integrum would be achieved by the ordering of a retrial. Merely to quash a conviction would in such a situation put an appellant, at any rate so far as concerns jeopardy of a conviction, in a superior position to that in which he had been before his trial. Perhaps what this discussion demonstrates is that, in relation to convictions properly secured years ago, the concept of restoring as far as possible the situation existing before the breach is somewhat elusive, the more so when the challenge is to the use of some but not all of the material deployed at trial.
However, and determinatively, even if the failure to re-open the appellants’ convictions might give rise to violation of Article 46, domestic law precludes reliance on any such violation in the circumstances of this case. The fact of violation could not have led to the exclusion of the answers at the trial, applying the approach available under domestic law at the time, because this would have amounted to partial repeal of legislation enacted by Parliament which authorised the use of the evidence (...). The same conclusion results from s6(2) of the HRA which preserves the lawfulness of the conduct of the prosecution and trial judge in relation to the admission of the DTI answers. Put another way, the will of Parliament as expressed in s434 trumps any international obligation.”
On 21 December 2001 the Court of Appeal dismissed the applicants’ appeals. The applicants sought leave to appeal.
On 11 February 2002 the Court of Appeal certified that the applicants’ appeal raised a point of law of general importance, namely:
"Where the Court of Appeal (Criminal Division) is called upon to determine the safety of a criminal conviction following a finding by the European Court of Human Rights that the use made at trial before 2 October 2000 of evidence obtained under powers of statutory compulsion in section 434 of the Companies Act 1985 rendered the appellant’s trial unfair and in breach of Article 6 of the European Convention on Human Rights
(a) is the Crown entitled to rely after 2 October 2000 upon the evidence the use of which was held to have rendered the trial unfair in order to support the safety of the conviction; and
(b) is the Court entitled to hold the conviction safe in reliance on such evidence;
notwithstanding the United Kingdom’s obligation under Article 46 of the European Convention to abide by the judgment of the European Court, and the principle of judicial comity governing the recognition and enforcement of a judgment of an international tribunal which is final and binding as between the parties to the appeal?"
On 19 March 2002, the House of Lords granted leave to appeal.
In addition to the arguments deployed before the Court of Appeal, the applicants also relied on the relevant principles of international law in the matter of reparation for internationally wrongful acts.
The applicants’ appeal was dismissed on 14 November 2002.
The House of Lords held that the Court of Appeal was entitled to hold the applicants’ convictions as safe since the Court of Appeal was obliged to examine the question of safety according to the law as it stood at the time of the applicants’ trial, and at that time section 434 of the Companies Act 1985 permitted the admission in evidence of statements which the applicants were obliged to give to the Inspectors. Parliament had since amended that Act to bring it into line with the European Court’s judgment. However that amendment did not apply with retrospective effect. Accordingly, the House of Lords considered itself bound by the principle of parliamentary sovereignty to respect the legislative intention of Parliament as it stood at the date of the applicants’ trial. The applicants had not had an unfair trial and there was no lack of safety in their conviction.
As to the effect of Article 46 of the Convention, and the obligation of the United Kingdom to make reparation for the breach of Article 6 in the form of restitutio in integrum, Lord Bingham stated:
In the circumstances, I think it neither necessary nor desirable, despite the wealth of interesting material to which we were referred, to consider what full reparation or just satisfaction might require in a case such as the present in which (if the compelled evidence were excluded) the existing convictions could not be upheld as safe, in which there is material (irrespective of the compelled evidence) to support a case against the appellants, but in which the Court of Appeal has indicated (no doubt rightly, in view of the lapse of time, the serving or partial serving of prison sentences and the age and health of some of the appellants) that the interests of justice would not appear to require a retrial even if the appeals were allowed (see section 7(1) of the Criminal Appeal Act 1968). These are no doubt questions which the European Court or the Committee of Ministers, or both, may be called upon to address and I forbear to comment.
Recommendation No. R (2000) 2
on the re-examination or reopening of certain cases at domestic level
following judgments of the European Court of Human Rights
(Adopted by the Committee of Ministers
on 19 January 2000
at the 694th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to bring about a closer union between its members;
Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter "the Convention");
Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms (“the Convention”) the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (“the Court”) in any case to which they are parties and that the Committee of Ministers shall supervise its execution;
Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);
Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;
Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;
I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;
II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:
(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.