The reasonable duration of the procedure is violated even if there is a contribution of the applicant to the delay, and the total duration is excessive

JUDGMENT

Keaney v. Ireland 30.04.2020 (no. 72060/17)

see here

SUMMARY

The case concerned a complaint about the length of civil proceedings following a failed business venture. It has also been chosen by the Court as a lead case
in relation to the issue of effective domestic remedies in Ireland for complaints about excessive length of proceedings.
The European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the
European Convention on Human Rights. Despite the conduct of the applicant, who had clearly contributed considerably to delay before both the Irish High and Supreme Courts, the length of the
appeal proceedings before the latter court had been excessive.

It also held, unanimously, that there had been a violation of Article 13 (right to an effective
remedy). The Court had difficulties in accepting that the principal remedy proposed by the
Government, an action in damages for breach of the constitutional right to a timely trial, was
effective in theory and in practice. Despite the Irish Supreme Court’s recent efforts to clarify the
conditions under which such damages would be granted, it continued to have concerns about the
speediness of the remedy and the fact that the definition of the relevant parameters for dealing with
such claims remained to be established. It also stressed that problems regarding the existence of an
effective remedy for unreasonable delay had been flagged since 2003 and reiterated in cases
involving civil and criminal proceedings since then.

Lastly, the Court awarded the applicant no pecuniary damages, holding instead that due to his
conduct the finding of a violation was in itself adequate just satisfaction.

PROVISIONS

Article 6

Article 13

PRINCIPAL FACTS

The applicant, Vincent Keaney, is an Irish national who was born in 1955 and lives in Cobh (Ireland).
In 1996 Mr Keaney won the national lottery and bought a building in the port of Cobh which he
intended to operate as a theme bar to be known as The Titanic Bar and Restaurant. The business
venture failed and in 2006 he commenced civil proceedings against 18 defendants arising out of
transactions between the years 2000-2003. He made various claims, including deceit, fraud,
misrepresentation or undue influence.

The proceedings, in which Mr Keaney was ultimately unsuccessful, were resolved after 11 years and
two months over two levels of jurisdiction.

At the level of the High Court he was required to amend his statement of claim on multiple occasions
before it was suitably pleaded in accordance with domestic requirements in July 2008. Five months
later the High Court found that he had failed in all of his claims and his proceedings were dismissed.
Mr Keaney appealed the High Court judgments between 2007 and 2009. Motions by the defendants
to dismiss the appeals because of his failure to provide the requisite documentation were heard in 2014 and he was ordered to file submissions in April 2015 and March 2016, respectively. The
Supreme Court finally handed down its judgments in July 2015 and April 2017, finding that there was
no basis to overturn the High Court judgments.

In the High Court many of his claims were found to have been “frivolous or vexatious”, while the
Supreme Court indicated that the addition of unsubstantiated allegations in his written submissions
was “nothing short of an abuse of process”.

THE DECISION OF THE COURT…

Article 6 § 1 (right to a fair trial within a reasonable time)

The Court found that the High Court proceedings had been resolved within a reasonable amount of
time, given the conduct of the applicant, which had involved him instituting proceedings against
multiple defendants without properly pleading his case.

Thus, much of the initial work of the High Court in 2006 and 2007 had been devoted to deciding
which of the many claims had to be struck out. The fact that he had failed to properly plead and
advance his litigation, even though he had had legal representation, had moreover contributed
decisively to the delay in the proceedings at this level. Indeed, once he had pleaded his case in
accordance with domestic procedural requirements, the High Court proceedings had been
concluded within five months.

At Supreme Court level, the problems had persisted regarding the manner in which the applicant
had pleaded his appeals. He had failed to lodge the requisite appeal documentation and to serve his
legal submissions on time.

However, his conduct alone could not justify the entire length of the appeal proceedings. Certain
stages of those proceedings had been unreasonably protracted and his inaction in prosecuting his
appeals before the Supreme Court had apparently persisted without repercussions until such time as
the defendants had taken action seeking to dismiss them.

It had taken eight years between the applicant appealing to the Supreme Court and the dismissal of
his second appeal. No adequate explanation had been given for the appeals having been allowed to
lie dormant for between five and seven years.

In conclusion, the Court found that, despite the conduct of the applicant, who had clearly
contributed to delay before both the High and Supreme Courts, the length of the proceedings had
been excessive, in violation of Article 6 § 1.

Article 13 (right to an effective remedy)

The Court reiterated that in its 2010 Grand Chamber judgment McFarlane v. Ireland, (no. 31333/06)
it had found a violation of Article 6 § 1 due to unreasonable delay of criminal proceedings and of
Article 13 in conjunction with Article 6 on the grounds that none of the domestic remedies proposed
by the Government, in particular an action for damages for a breach of the constitutional right to a
timely trial, could be considered effective.

The principal remedy proposed by the Government in the present case continued to be one in
damages for breach of the constitutional right to a timely trial.

The Government submitted that a domestic judgment handed down since McFarlane, namely Nash
v. DPP [2017] 3 IR 3202 , represented an important clarification by the Supreme Court of the
conditions under which constitutional damages for delay in criminal proceedings would be granted.
In particular, it had confirmed that the constitutional right to a timely trial was well-established in
Irish law and that in an appropriate case an Irish Court might award damages.

The Court identified the following difficulties with the Government’s response.

Firstly, in Nash the Supreme Court had held back on defining the parameters of such a claim in
circumstances where it had decided on the facts of the case that there had been no culpable delay
on the part of the State.

The Court stated that the reticence by a common-law court to develop the necessary parameters in
the abstract and not in the context of a suitable, concrete case was understandable. It also
recognised the importance of allowing remedies to develop in a constitutional system and, more
importantly, in the particular situation of a common-law system with a written Constitution like
Ireland.

However, problems regarding the existence of an effective remedy for unreasonable delay had been
flagged since 2003 and reiterated in cases involving civil and criminal proceedings since then.
A second concern was related to the speediness of the remedial action itself. There were long
waiting times before the Court of Appeal, including for ordinary civil appeals. The Courts Service
Annual Report indicated that in 2018 the waiting time for ordinary civil appeals to the Court of
Appeal was 20 months. With regard to the Supreme Court, the same report indicated that there was
a six-week waiting time from the filing of a notice seeking leave to appeal to that court to the issuing
of a determination on leave and that, thereafter, the waiting time from the date of the determination to delivery of judgment had been 68 weeks, although the most recent report from
the Supreme Court pointed to a dramatic reduction. The Court noted that in Nash the damages
proceedings on the claim for unreasonable delay had lasted more than six and a half years.

The Court also observed that the draft General Scheme of the European Convention on Human
Rights (Compensation for delays in Court Proceedings) Bill 2018, which sought to provide a compensatory remedy, remained, according to the information available to the Court, at prelegislative stage and required further consideration at Government level before it could be progressed.

Finally, another remedy, an application for damages under the European Convention on Human
Rights Act 2003, was only possible where no other action in damages was available. Despite the
clarification provided by the Supreme Court judgment in Nash, considerable legal effort, time and
even expense by potential applicants and the State would still be required to establish how failure to
respect the right to expeditious treatment of a case might be remedied in practice. The Government
had, moreover, provided no information regarding the ancillary possibility of a claim for damages
under the ECHR Act and the question of the availability of such a remedy in relation to unreasonable
delay.

The Court therefore held that, in those circumstances, there had been a violation of Article 13, in
conjunction with Article 6 § 1, of the Convention.

Just satisfaction (Article 41)

The Court noted that the domestic courts had indicated that the manner in which the applicant had
conducted his case had bordered on an abuse of process. In finding violations of Article 6 and Article
13 combined in the present case, it was not the Court’s intention to provide a perverse incentive to
applicants to pursue cases in an abusive manner at domestic level only to seek to secure a violation
of the European Convention thereafter.

The Court therefore held that the finding of violations of Article 6 § 1 and of Article 13 was in itself
adequate just satisfaction for the purposes of the Convention.

Separate opinion

Judge O’Leary expressed a concurring opinion, which is annexed to the judgment.


ECHRCaseLaw

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