The European Court of Human Rights has just delivered an important decision rebuking Ireland for violating the right of a suspect to a trial within “a reasonable time.” In the case of O v Ireland, a man waited 13 years and 7 months until he was eventually acquitted in a jury trial. In those 13 years and 7 months, there were two aborted jury trials and a lengthy dispute over the availability of psychiatric records and witnesses. The Strasbourg Court ruled that this period of time was “excessive” and a violation of Article 6 of the European Convention of Human Rights. However, this is not the first time that the European Court of Human Rights ruled that Ireland breached the Article 6 right to a fair trial within a reasonable time. The Strasbourg Court specifically referred to Ireland’s past record in Barry v Ireland and its recent Grand Chamber decision on 10 September 2010 in McFarlane v Ireland. It concluded that Ireland was once again in breach of its obligations to ensure trials against suspects moved speedily.
The case of O v Ireland raised some very striking and controversial issues. How do you remedy a breach of human rights? The man had argued that he was entitled to an order stopping any trial because the delay was so very long. Ireland had argued that the man should have sought damages in an Irish court but that his trial should proceed. This is not a very attractive argument. Are human rights subject to a price tag? In the wrong hands, a European State could breach human rights in the full knowledge that the taxpayer would ultimately fund the breach of human rights with a sum of money. The European Court of Human Rights rejected this argument and concluded that damages were not “an effective remedy.”
Most reasonable people agree that waiting 13 years and 7 months for a trial is far too long. Lawyers are familiar with the adage that ‘justice delayed is justice denied.’ However, we asked Michael Dillon BL who was counsel in the case what this actually means. Why is justice denied if it is delayed? With the passage of too much time, crucial witnesses may die or disappear as they did in O v Ireland. Witnesses may become unavailable to prove a defence alibi due to the vagueness or the imprecision of their recollection. Witnesses who are available could have faulty or unreliable memories. Indeed, loss of memory does not always reveal itself as the potent problem that it is to the guarantee of a fair trial. A lengthy trial also affects the suspect in a variety of ways. The suspect may have lost his or her liberty in lengthy pre-trial detention. He or she lives with a sense of uncertainty together with the social stigmatisation of being an accused. This typically causes further significant pressure on family and social life which is exacerbated by the public nature of most criminal proceedings. In some cases, this stress and anxiety can develop into a psychiatric condition. A criminal suspect may also have incurred financial costs through the loss of work hours and legal costs if denied legal aid.
Finally, it is important to remember that it is a cornerstone of the criminal justice system that a person is innocent until proven guilty of a criminal charge. The right to a trial within a reasonable time guaranteed by the European Convention of Human Rights means that innocent people should not wait excessively before that cloud of suspicion is removed.
The European Court of Human Rights has no power to order Ireland to stop a jury trial. It awards damages for a breach of human rights. The process of bringing a case to Strasbourg results in a money award. Mr. O submitted his application to the Strasbourg Court in 2007 but while he awaited this decision vindicating his human rights, his jury trial took place in 2010. What would have happened had the Strasbourg Court reached its decision prior to the jury trial? Would the prosecution have set down the jury trial notwithstanding the breach of human rights? How would an Irish Court have dealt with the Strasbourg case in the very trial in which Strasbourg has ruled that Ireland has breached human rights and ruled that damages are not effective? Perhaps the answers to these vital questions will be provided another day.