TIDEY KIDNAP:IRELAND HAS been ordered by the European Court of Human Rights to pay €15,500 to Brendan McFarlane in compensation and costs for delays in bringing him to trial in connection with the kidnapping of Don Tidey 27 years ago.
The decision is likely to have implications for the manner in which criminal charges are prosecuted and the speed with which court judgments are delivered.
Mr McFarlane was acquitted of the charges in June 2008, when an admission allegedly made by him in custody in 1998, was ruled inadmissible by the Special Criminal Court. In earlier proceedings, it had emerged that the only other evidence against him – alleged fingerprint evidence – had been lost.
The kidnapping occurred when McFarlane was on the run in 1983 following his escape from prison in Northern Ireland for his involvement in a bombing. He was arrested in the Netherlands in 1986 and returned to prison in Northern Ireland where he resumed his sentence for his involvement in this bombing and remained in prison until his release on parole in January 1998.
Within days he was arrested by gardaí and held under the Offences Against the State Act, when gardaí allege he made admissions relating to the Tidey kidnapping, which he later denied.
In 1999, he learned of the loss of the fingerprint evidence, and sought the prohibition of his trial. This application was heard by the High Court in July 2003, where he succeeded. The State appealed to the Supreme Court, and this case was heard in February 2006 where the State’s appeal was upheld. He then sought a prohibition of his trial on the grounds of delay, and this application was heard by the High Court in November 2006, where the court found against him. His appeal was heard in the Supreme Court in February 2007, with judgment delivered in March 2008, where the Supreme Court upheld the High Court’s decision.
When the trial began, the Special Criminal Court ruled his alleged statement inadmissible and the prosecution withdrew the case, leading to his acquittal.
He then went to the Strasbourg court complaining of delays in the prosecution of his case and seeking compensation. The State argued that the delays, where they occurred, were due to his legal challenges. The Strasbourg court rejected this argument, finding that the State had an obligation to ensure expedition.
It also rejected the State’s argument that Mr McFarlane had not exhausted all domestic remedies.
Mr McFarlane’s case was heard before the Grand Chamber, that is all the judges of the European Court of Human Rights in Strasbourg last March, which is unusual. Most cases in the court take place before a chamber of seven judges. However, where a case raises a serious question of interpretation of the European Convention on Human Rights, or where there is a risk of departing from existing case law, a chamber may relinquish jurisdiction to the Grand Chamber. The court delivered its decision, by a majority of 12 to five, yesterday.
This is the second time recently the Government has lost a case in Strasbourg concerning a delay in bringing criminal prosecutions. In 2005, the court ruled that the rights of Cork doctor James Barry had been violated by the delay in prosecuting a case against him alleging over 200 counts of sexual assault. The case then did not proceed. Minister for Foreign Affairs Micheál Martin said the ruling raised issues for the Government which it would have to deal with. “We’ll reflect on the judgment and clearly act on it,” he told reporters in Brussels. “We’re always keen . . . to comply with our obligations under international covenants and I think we’ll certainly examine the judgment.”