EHRM, 04-05-2010, nr. 56588/07

The applicant, Mr Robert Stapleton, is an Irish national born in 1943. He did not communicate his current address to the Court. He was represented before the Court by Mr E. Gillet, Ms L. Levi and Mr S. Engelen, all lawyers practising in Brussels.

The applicant complained that, given the delay in prosecuting the charges against him, his surrender to the UK on those criminal charges would violate his rights under Article 6 of the Convention.

He also made certain allegations in correspondence with the Court as regards his prospects for a fair trial in the UK arising out of certain oral and written exchanges between his lawyers and the English Crown Prosecution Service (‘CPS’), the English Court's Service and the UK Information Commissioner's Office between 2007 and 2009. He referred, inter alia to a refusal by the CPS to negotiate his voluntary surrender to the UK; a refusal to confirm that no further charges would be retained against him (notably to the effect that he had links to the Irish Republican Army and consequently could be subjected to British terrorist legislation and regimes); a refusal to confirm that the Courts' Service was not competent to grant legal aid (to challenge the EAW in British courts); a refusal to confirm that certain documents had already been destroyed; and a failure by the Information Commissioner's Office to furnish requested documents. The applicant also considers that his pre-trial detention in the UK would be an inevitable consequence of his surrender in violation of Article 6.

He also complained under Article 8 and Article 2 of Protocol No. 4 in correspondence with the Court about his being obliged, by the Supreme Court judgment, to reside outside Ireland and away from his family.

The applicant contested the decision of the Irish courts to surrender him to the UK since his trial in the latter jurisdiction would violate Article 6 of the Convention and, notably, the right to a fair trial within a reasonable time. That Article, in so far as relevant, reads as follows:

He submitted that the High Court's finding that the delay was such as to create a real risk that he would not receive a fair trial in the UK, was correct and fell within a discretionary power accorded by the Framework Decision to courts in executing States. The Supreme Court, he argued, had not acted pursuant to the Framework Decision and the Convention as it denied the discretionary power which any judge in an executing State was entitled to exercise when ruling on an application to surrender under an EAW. Whatever the content of the Framework Decision, he submitted that Contracting States were not entitled to depart from their obligations derived from the Convention and the 2003 Act mandated that a person shall not be surrendered if to do so would be incompatible with the Convention (or its Protocols). He maintained that any human rights issues concerning his surrender under the Framework Decision should be examined on the first occasion when they arise, namely, by the executing State. He therefore argued that the Irish Courts should have fully reviewed, in the light of the delay in pursuing the case, compliance with Article 6 prior to his surrender to the UK (as the High Court did) and, further, that to do otherwise (as the Supreme Court did) breached his rights under Article 6 of the Convention. Moreover, his surrender to the British authorities would be manifestly disproportionate in view of the facts of the case and the rights concerned.

The Court notes that, while the applicant's absconding following the order for his surrender by the Irish Supreme Court was wrongful, it does not render illegitimate his interest in obtaining from this Court a ruling on the alleged violation of the Convention which he maintains took place beforehand (see, mutatis mutandis, Van der Tang v. Spain judgment of 13 July 1995, Series A no. 321, p. 17, § 53 and Averill v. the United Kingdom (dec.) no. 36408/97, 6 July 1999).

Moreover, the Court recalls that the right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society so that the Court does not exclude that an issue might, exceptionally, be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country (Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 88, ECHR 2005-I).

However, the Court does not consider that the facts of the present case disclose substantial grounds for believing that there would be a real risk that the applicant would be exposed to such a ‘flagrant denial’ of Article 6 rights in the UK. The Court notes, in this regard, that the UK is a Contracting Party and that, as such, it has undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 6. It has incorporated the Convention's provisions into domestic law by virtue of the Human Rights Act, 1998.

Regarding his central complaint concerning the alleged risk of an unfair trial by reason of inordinate delay, the Court's jurisprudence has accepted that delay in prosecuting a crime does not, necessarily and of itself, render criminal proceedings unfair under Article 6 (see, for example, Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI; and Massey v. the United Kingdom, no. 14399/02, (dec.) 8 April 2003).

The Court also rejects the applicant's suggestion that the executing or surrendering State should go beyond the examination of a ‘flagrant denial’ and determine whether there has been established a real risk of unfairness in the criminal proceedings in the issuing State (the UK, in this case). It does so for the following reasons.

Firstly, such an approach would run counter to the principles established in Soering and confirmed by the subsequent jurisprudence of this Court (see, for example, the above-cited Mamatkulov and Askarov v. Turkey case).

Secondly, the Court agrees with the finding of the Supreme Court that on the facts of the case it would be more appropriate for the courts within the UK to hear and determine the applicant's complaints in relation to the alleged unfairness caused by delay. The applicant essentially proposes that the courts of the executing State (Ireland) should examine issues which are factually and legally more pertinent to the issuing State (the UK). He contends that the Irish courts should assess alleged delay based on complex factual and legal matters which are specific to the UK. The Court recalls that, as a general rule, domestic trial courts are considered better placed than this Court to assess issues of fact and of admissibility of evidence (Windisch v. Austria, judgment of 9 June 1998, Series A no. 186, § 25; Texeira de Castro v. Portugal, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 34; and the above-cited decision in Massey v. the United Kingdom). The same reasoning applies when comparing the positions of a domestic and foreign court. Moreover, the applicant's additional allegations raised in correspondence do not constitute evidence of any prospective flagrant denial. The applicant's complaint about a refusal by the CPS to negotiate his voluntary surrender to the UK does not give rise to an issue under Article 6 and his suggestion that he may, in the future, face additional charges which may lead to the application of anti-terrorist legislation is vague and theoretical. He has not, as yet, lodged an application for legal aid in the UK. Accordingly, the Court agrees with finding of the Irish Supreme Court that the UK courts are better placed to make an assessment of culpable delay within the context of proceedings within that jurisdiction.

Thirdly, the applicant's submission, that he is entitled to have his Convention right protected on the first occasion on which it becomes relevant (in this case before the Irish courts), is also misplaced in view of the status of the UK as a Contracting party to the Convention. The courts of the UK have a common law jurisdiction to stay proceedings for alleged unfairness caused by delay on the grounds of abuse of process. The applicant could apply, from the outset of the criminal proceedings against him, for a stay arguing that he would not receive a fair trial having regard to the lapse of time. He could raise, inter alia, any loss, destruction and/or contamination of evidence caused by such delay together with any consequent difficulties in defending criminal charges. He could also raise any alleged investigative impropriety on the part of the prosecution, including alleged manipulation or misuse of the process of the court (the above-cited Massey v. the United Kingdom decision and Lee v. the United Kingdom, No. 56926/00, (dec.) 26 August 2003). Furthermore, any unsuccessful application for a stay could, thereafter, be the subject of an application to this Court under Articles 6 and 34 of the Convention. In so far as the applicant's complaint concerns the ‘reasonable time’ aspect of Article 6 he could, having exhausted any effective remedies in the UK, introduce that complaint before this Court without having to await the outcome of the UK criminal proceedings.

It may indeed be that an expelling State's responsibilities as regards extradition/expulsion to a Contracting State have been heightened to some extent beyond those identified in the above-cited Soering judgment (T.I. v. the United Kingdom (dec.), no. 43844/98, Reports 2000-III as regards the Dublin Convention and K.R.S. v. the United Kingdom, (dec.), no. 32733/08, 2 December 2008, as regards the Dublin Regulation). However, those cases concerned non-derogable rights under Articles 2 and 3 of the Convention. In addition, those cases concerned expulsion to another Contracting State when there were reasons to believe that the individual might be sent onwards to a third non-Contracting State (where he would be exposed to a relevant risk) without a proper examination of his claim by the intermediary (Contracting) State and, in particular, without having any proper opportunity to apply to the Court and request interim measures. This is not the position in the present case: the applicant's final destination on surrender would be a Contracting Party, namely the UK.

Finally, and as to the applicant's reference to inevitable pre-trial detention in the UK, the Court notes that he raised this as an alleged inevitable consequence of his surrender in violation of Article 6 of the Convention and that he does not invoke Article 5. While it may be true that a record of absconding would be an element which would tend to lean against a subsequent grant of bail in the UK, the applicant would have the possibility immediately on surrender to the UK to apply for bail, raising this and all relevant criteria in favour of and militating against a grant of bail, so that his suggestion that pre-trial detention in the UK would inevitably follow his surrender is neither a complete nor convincing submission.

Having regard to the above, the Court rejects the applicant's complaints under Article 6 of the Convention as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

In view of the conclusion that his surrender to the UK would not violate his rights under Article 6 of the Convention, the applicant's absconding from Ireland to avoid that surrender cannot be considered to give rise to an issue under Article 8 and Article 2 of Protocol No. 4 to the Convention. Accordingly, the Court also rejects these complaints as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Stanley Naismith JosepCasadevall

Deputy Registrar President