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Posts Tagged ‘ECtHR’

No redress for ‘former employees’ of Magdalen laundries

September 18, 2009 12 comments

Magdalene2The Irish Times reports today that Minister for Education, Batt O’Keeffe, has said that former residents of Magdalen laundries are not eligible for compensation from the Residential Institutions Redress Board. Mr O’Keeffe was replying in a letter to Tom Kitt TD, who had made representations to the Minister concerning former residents of the laundries.

He did so on behalf of James Smith, associate professor at the English department and Irish studies programme in Boston College and author of Ireland’s Magdalen Laundries and the Nation’s Architecture of Containment, (2008, Manchester University Press). In his letter, Mr O’Keeffe stated that ‘in terms of establishing a distinct scheme for former employees of the Magdalen laundries, the situation in relation to children who were taken into the laundries privately or who entered the laundries as adults is quite different to persons who were resident in State-run institutions.’

An exception to this, he said, would be children who were transferred from a State-regulated institution to a Magdalen laundry and suffered abuse while resident there. This differentation was justified was on the basis that the State was still responsible for the welfare and protection of children transferred to a Magdalen laundry from a State-regulated institution ‘provided they had not been officially discharged from the scheduled institution’. In doing so, the Minister perpetuates the historical failure of the State to recognise and give effect to its responsibility to ensure the protection of adult occupants of the Laundries.

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Proposed Changes to the Criminal Legal Aid Scheme

August 31, 2009 2 comments

DJELRIn the last week, Irish newspapers (Irish Times (here, here, here and here) and Irish Independent, here) have reported on potential cuts to the scheme of criminal legal aid. The rationale for these cuts is to curb the escalating costs of criminal legal aid. The proposed plan, under a new Criminal Legal Aid Bill, aims to allow Gardaí have access to a defendant’s Personal Public Service Number to ensure that he or she does not have the means to employ his or her own solicitor. The Free Legal Advice Centres (FLAC) have stated that any changes to the criminal legal aid scheme should preserve the right to “real and effective justice”. FLAC have warned the Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. that changes should not lead to an ineffective and bureaucratic administration of the scheme of criminal legal aid.  The main opposition party in Dáil Eireann (the Irish lower house of parliament), Fine Gael, have welcomed the move. Writing in the Irish Times, the legal affairs editor, Carol Coulter, has warned that the savings achieved will “not produce a pot of gold”. Ms. Coulter notes that the vast majority of recipients’ of criminal legal aid are social welfare claimants, and the introduction of new means tests within this sphere may in fact lead to delays in the administration of justice.

EcTHR 2Questions do arise as to the extent to which it may interfere with a right to a fair trial. Article 6(3)(c) of the European Convention on Human Rights provides that a person who does not have sufficient means to pay for legal assistance, should be provided with such assistance “when the interests of justice so require”. The European Court of Human Rights (ECtHR) has decided that in criminal cases a defendant must not be placed at a substantial disadvantage vis-a-vis his/her opponent (Dombo Beheer v Netherlands, para. 33).

The new proposals may also result in the delay of criminal trials, given that judicial reviews of a District Court judge’s decision to not grant legal aid may be brought by the defendant. The ECtHR will assess whether the delay is reasonable having regard to the complexity of the case, the conduct of the applicant and the relevant State authorities and the importance of what was at stake for the applicant in the litigation (see, Barry v Ireland, para. 36). It is therefore not beyond the realms of possibility that due to protracted litigation relating to the right of a defendant to be granted criminal aid, breaches of Article 6(3)(c) could not be ruled out. In relation to delay, (although not dealing in any respects with the right to criminal legal aid), the Irish Supreme Court in McFarlane v Director of Public Prosecutions [2008] IESC 7 (05 March 2008) held that there was no violation of Article 6 ECHR, where a delay of six years and four months in attempts to start the prosecution.  The defendant had taken judicial review proceedings in an attempt to prevent the prosecution. Mr. Justice Kearns noted that there was no blameworthy prosecutorial or systemic delay in the case.

It remains to be seen whether this proposal will become law, and whether this will result in delays in the prosecution of alleged offences.