“While the conduct of the applicant had contributed somewhat to the delay…”

The BBC reports the European Court of Human Rights ruling against the Irish government in the case taken by Maze escapee Brendan ‘Bik’ McFarlane following the collapse of his trial on charges relating to the kidnap of Don Tidey in 1983.

The iol report notes part of the ruling

The Court ruled in favour of the former IRA commander in the Maze and found the 10-and-a-half-year wait from his arrest in 1998 until he walked free was excessive.

The ECHR ordered the Irish state to pay McFarlane €5,500 damages and €10,000 costs and expenses.

The west Belfast republican’s appeal centred on four grounds – that authorities delayed bringing criminal proceedings and because of this key prosecution evidence was lost and there was a lack of evidence other than questionable police interviews.

McFarlane also claimed his arrest and detention was a deliberate and disproportionate interference with his private and family life and that there was no effective remedy under Irish law for his grievances.

The Court found: “While the conduct of the applicant had contributed somewhat to the delay, it did not explain the overall length of the proceedings against him.”

It added: “The Court concluded that the overall length of the criminal proceedings against the applicant were excessive.”

In a 60-page judgment, the Strasbourg court also ruled there was no suitable legal avenue in Ireland for McFarlane to deal with his grievances.

The court dismissed McFarlane’s claims there wasn’t enough evidence to prosecute, noting that he had already secured an acquittal and also rejected claims his private life had been damaged, ruling that the complaint was out of time.

As I mentioned in March

Concerns about The Process™ [were] unlikely to be considered a valid defence…

Adds  Thanks to ‘slappymc’ for the link to the ruling

It was by a majority of 12 votes to 5…

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  • Oracle

    Must be a major disappointment for him, word from the Felons regulars was that he was expecting £150,000 plus costs.

  • Alan Maskey

    Poor victim. You fight for Irish freedom against trainee gardai and all you get is a miserable £15,000. What would Tom Barry have said?
    Isn’t it pathetic that these people have the effrontery to sue? Hasd Bic done anything positive and praise worthy with his life since joining PIRA ?
    He should have stayed in the priesthood. Africa’s gain etc
    Are PSF paying out anyone or are they a Victims Only group? The BBC’s round up of the papers states Martin McGuinness’ IRA role is having a torch shone on it right now. Gerry has to come to the rescue. What happens when the rat runs out of protectors? Will he cough up?

    The paper’s Morning View column says that the “spotlight is shining very brightly” on the Deputy First Minister to reveal his IRA past and the orders he gave.
    http://www.bbc.co.uk/news/uk-northern-ireland-11257409

    Come on Martin. Open your big mouth.

  • slappymcgroundout

    “Concerns about The Process™ [were] unlikely to be considered a valid defence…”

    Except that was never the defense. The primary defense was that McFarlane enjoyed an adequate remedy under the law of the Republic of Ireland. The Euro court rejected that claim:

    (d) Conclusion

    128. In such circumstances, the Court considers that the Government have not demonstrated that the remedies proposed by them, including an action for damages for a breach of the constitutional right to reasonable expedition, constituted effective remedies available to the applicant in theory and in practice at the relevant time.

    129. Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.

    Next, as I commented on your prior piece:

    Speedy trials don’t seem to be the routine on either side of the border. For how sad and pathetic, note the one paragraph on how long it took to decide his speedy trial challenge, from Nov 99 until March 06.

    And so no surprise:

    154. In such circumstances, the Court finds that the Government have not provided any or any convincing explanations (Barfuss v. the Czech Republic, no. 35848/97, § 83, 31 July 2000) for the above-described delays attributable to the authorities in the prohibition actions, which added to the overall length of the criminal proceedings.

    The speedy trial challenge noted by me was his second “prohibition action”.

    Lastly, Oracle, your felon friends have it wrong:

    158. The applicant claimed 15,000 euros (EUR) (or such other sum as this Court would consider appropriate) in respect of non-pecuniary damage given the stress, inconvenience and restrictions experienced by him as well as his inability to plan for his future during the relevant period.

    So your felon friends were off by a factor of 10x the amount claimed (your felon friends claimed he was asking for 150 while he asked for 15). A rather substantial error on their part.

  • Oracle

    Or on the part of the people who told them as they have never ever deliberately relayed false details before, but point accepted Slappy

  • Some may not like it, but it really is time to consider amnesty for ex terrorists, of all shades. Subject of course to complete rejection of any future terrorist or violent action.

  • Alan Maskey

    Another martyr for old Ireland?
    The biro kid that is, not the trainee garda and soldier who were killed trying to recover torture victim Din Tidey or the umnlucky Prods who were machine giunned trying to escape the Bayardo bar.

  • slappymcgroundout

    So one and all get the nature of the ROI’s primary defense:

    THE LAW

    I. ADMISSIBILITY OF THE COMPLAINTS

    71. The applicant complained under Article 6 § 1 that the criminal proceedings against him exceeded the reasonable time requirement of Article 6 § 1 and under Article 13 about the lack of an effective domestic remedy in that respect.
    ***
    II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

    82. The applicant complained under Article 13 that he had no adequate compensatory remedy for the breach of his right to a trial within a reasonable period of time.

    A. The Government’s submissions

    83. The Government argued that there were four effective domestic remedies available to the applicant.
    ***
    B. The applicant’s submissions

    97. The applicant maintained that there was no effective compensatory domestic remedy for unreasonable length of criminal proceedings, relying on the conclusion to that effect in the Barry judgment.
    ***
    C. The Court’s assessment

    1. Relevant principles as regards Articles 13 and 35 § 1

    107. The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them.
    ***
    2. Application to the present case

    109. In the present case, the Government submitted that there were four effective domestic remedies for delay in criminal proceedings. They mainly argued that this Court’s judgment in Barry v. Ireland was incorrect in concluding that an action for damages for a breach of the constitutional right to reasonable expedition did not constitute an effective domestic remedy for delay in criminal proceedings.

    Okay, then after discussing those 4 claimed domestic remedies, as related in my prior post:

    d) Conclusion

    128. In such circumstances, the Court considers that the Government have not demonstrated that the remedies proposed by them, including an action for damages for a breach of the constitutional right to reasonable expedition, constituted effective remedies available to the applicant in theory and in practice at the relevant time.

    129. Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.

    Then comes the finding of non-justified delay in the relevant underlying criminal proceeding and game over, ROI, you lose. Otherwise hard to comprehend how some could have presented their case with a straight face, in light of this single summation:

    145. The proceedings ended on 28 June 2008, with the applicant’s acquittal, and thus lasted over 10 years and 6 months.

    10 years and 6 months. That isn’t speedy to any rational human.

    Lastly, let me correct myself, as the 1999 to 2006 challenge was his initial speedy trial challenge, and so his first “prohibition action”. By the way, is there not some provision in the ROI constitution that gives criminal matters priority on the court’s docket? In other words, no way it should take from 1 Nov. 99 to 7 Mar. 06 to decide his speedy trial challenge (which was also coupled with a challenge to the fingerprint evidence, as some had lost the original fingerprint evidence). If it helps, think of it this way. Posit him as factually innocent and he can’t make bail. So he’s in jail for all that time. That’s why we rational folk give the criminal docket priority.

  • Carrickmoreman

    Marty McG has questions to answer, but your obsession with him is getting a little concerning.

  • slappymcgroundout

    Sorry, but for inquiring minds wanting to know, here is the link to the court’s opinion:

    http://tinyurl.com/396altx

    And for more on the failure to exhaust domestic remedies or not being the central issue, from the one dissent:

    1. We do not share the majority’s view in this case. We make no observation on the merits of this claim. In our view, this case is inadmissible for non-exhaustion of domestic remedies and it brings into sharp focus the fundamental importance of the principle of subsidiarity enshrined in Article 35 § 1 of the Convention.

    And so on it goes.

  • Pete Baker

    Thanks for the link to the ruling.

  • Pete Baker

    “Except that was never the defense”

    I never said that was the defence…

  • Remind me, how many are in Guantanomo? Hmm & how many of them got there by that well known, five star service: extraordinary rendition?

  • mark

    Alan , What’s wrong ?

  • socaire

    I think it was ‘passed over for promotion’!