The criteria of the Court for determining "reasonable time",
within the meaning of Article 6.1 of the European Convention on Human Rights
Introductory note: The exhaustion of domestic remedies
The Convention is intended to complement national arrangements for protecting human rights. As the Court stated in the Handyside judgment of 7 December 1976: "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights". Because of its subsidiary character, Article 35 of the Convention makes it obligatory to exhaust domestic remedies.
The Court applies this provision with certain flexibility by requiring applicants to exhaust all remedies in domestic law that can reasonably be expected of them but not to try remedies that have no chance of success.
Applicants must also have relied on the alleged violation of the European Convention on Human Rights, at least in substance, in the domestic courts.
With regard to the reasonable lapse of time condition, the subsidiary nature of the system for protecting human rights was strengthened by the Kudla v. Poland judgment of 26 October 2000. In a reversal of its case-law, the Court ruled that Article 13 of the Convention11 now provided a right to a remedy that was quite distinct from the Article 6 protection against violations of the reasonable time requirement.
Hitherto, the Court had had to consider Article 6§1 as a lex specialis in relation to Article 13, and it did not consider claims of a violation of the latter if it had already found a violation of Article 6§1.
However, "the growing frequency with which violations in this regard are being found has recently led the Court to draw attention to “the important danger” that exists for the rule of law within national legal orders when “excessive delays in the administration of justice” occur in respect of which litigants have no domestic remedy".
The Court noted that the purpose of Article 35§1, which it informs us has close affinities with Article 13, is to afford contracting states the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. Referring to the preparatory work on the European Convention on Human Rights, it went on: "The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court"12.
In this crucial judgment, the Court therefore invites contracting states to establish domestic procedures that offer citizens an effective remedy, in law and in practice, against excessively lengthy proceedings, whether or not the remedy is a judicial one.
In its Mifsud v. France decision of 11 September 2002, the Court looked in more detail at two options: preventive and compensatory remedies. According to the Court, the fact that this purely compensatory remedy was unable to expedite proceedings currently under way was not critical. Domestic remedies that citizens could use to challenge the length of proceedings were "effective", as understood by Article 13, when they were capable of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that had already occurred (judgment in French only).
Article 13 therefore offers one option, namely that remedies are "effective" if they can force the court concerned to reach an earlier decision or award the party adequate compensation for delays already incurred (Kudla judgment, §159). According to the Court, given the close links between articles 13 and 35§1 (see also (Kudla judgment, §152), the same criteria of effectiveness necessarily apply to domestic remedies within the meaning of the latter.
The Court therefore now gives states two alternatives in domestic law, either to offer applicants compensation for detriment caused by excessive delays or to make it possible, at the applicant's request, to expedite the proceedings. Both options are used by contracting states, as will be seen in the second part of the report.
However, remedies must be readily available and adequate. According to Bindels, these remedies must be sufficiently certain, theoretically and in practice, if they are to be effective and accessible13.
States are always required to demonstrate to the Court the effectiveness of their remedies. By showing that their legislation or practice has changed, countries can persuade the European Court to modify its position.
To take the Portuguese example, when it ruled that the Paulino Tomas v. Portugal case of 27 March 2003 was inadmissible, the Court considered, for the first time, that the legislative-decree of 21 November 1967 on the state's extra-contractual liability was an effective means of challenging the length of proceedings. Hitherto, the Commission had consistently rejected arguments based on this decree (see Gama da Costa v. Portugal decision of 5 March 1990), because there was no case-law to show that such actions were likely to succeed. However, following the supreme administrative court's change of practice on the 15 October 1998 in its Pires Neno judgment, the Committee found that, as of October 1999, this remedy had acquired sufficient legal certainty for its use for the purposes of Article 35(1) of the Convention to be possible and necessary.
In another Portuguese case, in the criminal domain, the Court held that applying for an order to expedite the proceedings under Articles 108 and 109 of the Code of Criminal Procedure was a precondition of any application to it and a remedy that had to be exhausted (Moreira Barbosa admissibility decision of 29 April 2004)14. It found that in this case the applicant had exercised this right unsuccessfully and that he was not obliged to bring a second action on extra-contractual liability under the 1967 legislative-decree, whose purpose was practically the same. It therefore dismissed the government's argument that domestic remedies had not been exhausted15.
In France, since the Giummarra v. France decision of 12 June 2001 and the aforementioned Mifsud decision, Article L. 781-1 of the Judicial Organisation Code has been an obligatory remedy for anyone wishing to complain of excessive lengthy proceedings in the courts. Since 21 September 1999, any applications to the European Court that have failed to use this prior domestic remedy have been declared inadmissible.16
I. ESTABLISHED CRITERIA FOR ASSESSING TIME ELAPSED
The Court generally uses the following wording: "the reasonableness of the length of proceedings is to be assessed on the basis of the circumstances of the case and having regard to the criteria laid down by the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities".
Since the Neumeister judgment of 27 June 1968, these three criteria have been applied consistently by the Court to both criminal and civil cases. The König judgment of 28 June 1978 added a further criterion, namely what is at stake for the applicant.
For each application these criteria are examined and the Court makes an overall evaluation.
The number of proceedings for a case is, also, an element which the Court will take into account. The Martial Lemoine judgment v. France of 29 April 2003 which concerned a dispute over co-ownership of property lasting 7 years, 8 months and 26 days for proceedings in four tiers of court. The proceedings lasted 1 year and 10 months at first instance, 1 year and almost 8 months on appeal, one year and nine months at the cassation stage and slightly more than 2 years in the second appeal court. The Court reached the following conclusion "... Although an overall duration of more than seven years and eight months is a fairly lengthy period, the Court considers that the time lapses attributable to the authorities cannot be deemed unreasonable, in view of the circumstances of the case as a whole and in the light of its case-law." (§ 33 - unofficial translation)
A. THE COMPLEXITY OF THE CASE
This may involve legal factors, such as a change in legislation, the transformation to a market economy, the interaction between administrative and judicial procedures (for example, the dismissal of disabled workers in Austria and France), the need to await the outcome of a criminal trial before civil proceedings could be terminated (Djangozov v. Bulgaria judgment of 8 July 2004), the joining of several cases, the need to reconcile the interests of individuals with those of the community and the presence of several accused.
It may also involve factual elements, so that the need to hear numerous witnesses and the difficulty of locating witnesses (Mitev v. Bulgaria judgment of 22 December 2004) have to be taken into account, as does the time needed to reconstruct events or assemble evidence (Akcakale v. Turkey judgment of 25 May 2004), or, on the other hand, the absence of any witnesses in a criminal case (Commission, Jean-Claude Boddaert v. Belgium, 17 April 1991).
Other complicating factors are the use of specialist expertise or the need to translate documents or call on an interpreter (in the Sari v. Turkey and Denmark judgment of 8 November 2001, which concerned a case of homicide committed in Denmark by the applicant, a Turkish national, the Court drew attention to the factual delays arising from the need to translate the proceedings into two languages).
Certain cases are complex for both factual and legal reasons, such as the need to know, more than 20 years on, whether the applicant was in a state of bankruptcy on 14 September 1971 and, if not, what his assets were in that year17.
The Court also seems to treat certain cases as complex by their very nature. Examples include land consolidation, compulsory purchase, fraud cases and international financial offences.
In the Wiesinger v. Austria case of 30 October 1991, for example, which concerned a land consolidation scheme, the Court recognised "as did all the participants in the Strasbourg proceedings, that land consolidation is by its nature a complex process, affecting the interests of both individuals and the community as a whole" (the issue had already been raised in the Erkner and Hofauer case).
In the Wejrup v. Denmark decision of 7 March 2002 concerning a fraud case, the Court referred to the complexity of the case, which concerned the activities of the finance director of a holding company of a group of over fifty companies throughout the world and required an examination of these companies' accounts over a 5 year period. It noted that "the scale and complexity of a criminal case concerning fraud, which often is compounded further by the involvement of several suspects, may justify an extensive length of the proceedings".
In the C.P. and others v. France (18 October 2000) and Hozee v. Netherlands (22 May 1998) judgments, the Court found that Article 6§1 had not been violated. Yet in the former case, the proceedings had lasted 7 years, 9 months and 26 days.
In the Hozee case, the Court stated that the preliminary judicial investigation of 4 years and 7 months appeared "to have lasted a disturbingly long period of time"
It examined this procedural stage in detail and drew attention to the complexity of the task of unravelling a network of interlocking companies and accounts which had been created in such a way as to make it as difficult as possible for the authorities to detect fraudulent tax and social-security practices.
It also noted that the authorities had to take evidence from a substantial number of witnesses and collect and examine a very significant volume of materials, and that the undoubted scale and complexity of the investigation were further compounded by the involvement of other suspects in the fraud. It concluded that there had not been any period of inertia and that the length of the investigation had not been unreasonable.
In a case concerning the constitutionality of a tax on electricity, the Court noted that the case was a complex one because the Constitutional Court had to solicit the observations of a number of authorities (Klein v. Germany judgment of 27 July 2000).
However, the complexity of a case is not always sufficient to justify the length of proceedings. Other criteria come into play and the Court makes an overall assessment in the light of all the various criteria concerned.
B. THE APPLICANT'S CONDUCT
This criterion presents a particularity: it is the only criteria which can involve a report of a non violation, while at the same time the time there is obviously an excessive lengthy procedure and so in addition, no notable inactivity is ascribable with the national jurisdictions. If it is the essential cause of the delay, there will be no violation of the article 6§1.
In a decision of admissibility, on the civil matter18, the Commission recalled “that what is required as a part of a civil procedure is a “normal diligence” and that only ascribable slowness in the State can lead to the conclusion of a “reasonable delay”. In the species, it showed the non violation of article 6.1, estimating that the non diligent behaviour of the applicant was largely responsible for the, “first of all unreasonable” duration, that is to say more than 10 years for a procedure of divorce.
The Court has held, in a criminal case, that "... Article 6 (art. 6) did not require the applicants actively to co-operate with the judicial authorities" (Eckle v. Federal republic of Germany judgment of 15 July 1982 § 82)19.
Like the Commission, the Court considers "that the person concerned is required only to show diligence in carrying out the procedural steps relating to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings. He is under no duty to take action which is not apt for that purpose" (Union Alimentaria Sanders SA judgment of 7 July 1989).
Nevertheless, "the applicants' behaviour constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account in determining whether or not the reasonable time referred to in Article 6 para. 1 ... has been exceeded" (Wiesinger v. Austria judgment of 30 October 1991, § 57)20.
In criminal cases, the Court always deducts any time when the applicant was evading justice. In the aforementioned Sari v. Turkey and Denmark case, the Court stated that the period of 2 years, 4 months and 6 days between 23 February 1990, the date he absconded, and 29 June 1992, the date of his arrest in Istanbul, was solely the responsibility of the applicant, who thereby effectively evaded justice of his own free will (judgment in French only). The Court emphasised that the obligation to appear in court was an essential element of the judicial process, other than in cases of force majeure or where there was a legitimate excuse, and that it was out of the question for the applicant to benefit from his decision to abscond from justice.
The Court has also taken account of the fact that an applicant delayed proceedings by failing to give the authorities his address (Mitev v. Bulgaria judgment of 22 December 2004)
However, it excludes any delays that could be considered to result from force majeure. For example, an applicant's repeated admissions to hospital in the course of proceedings owing to his poor health could not be deemed his responsibility (Lavents v. Latvia judgment of 28 February 2003).
Applicants are only held to be responsible for delays when they have manifestly shown bad faith.
In a very long (15 years) Italian civil case, the Court agreed with the Commission that the two applicants had never taken steps to secure a more rapid examination of their case and had even made repeated requests for adjournments (at least 17), and therefore shared responsibility for the delays in proceedings. It concluded that there had been no violation of Article 6§121
The Court makes a clear distinction between different types of applicant conduct. Applicants are totally free not to reactivate proceedings or resume them in other courts, according to the principles governing the organisation of proceedings and the responsibility of the parties laid down in national regulations governing civil proceedings, and the courts have no leeway in this respect.
The situation is different in the case of applicant apathy in the course of the proceedings. Courts must ensure that they run smoothly, for example, by acting attentively when asked to agree to a request for adjournment, hear witnesses or monitor the deadlines established for the preparation of an expert’s report22.
However, applications cannot be criticised for using all the remedies open to them. In the Guerreiro v. Portugal judgment of 31 January 2002, the Court argued that "applicants cannot be blamed for making full use of the remedies available to them under domestic law" (Erkner and Hofauer v. Austria judgment of 23 April 1987, § 68). In this case, although some of the applicant's appeals had been dismissed, the one lodged on 13 March 1990 had been partially successful.
The Court examines closely delays that might be caused by applicants' conduct. In the Proszak v. Poland judgment of 16 December 1997, the Court identified a series of groundless challenges, failures to attend hearings, only partly justified on medical grounds, poor co-ordination between the applicant and her counsel and her refusal to attend a third psychiatric examination as being critical for the delays in the proceedings and found that Article 6§1 had not been violated.
In another Polish case, the main cause of the procedural delays was the conduct of the applicant and his co-accused in the criminal proceedings, as a result of which the Court concluded that the 6 years and 1 month that the aggravated fraud proceedings had lasted was not unreasonable. The Court criticised the applicant's repeated failure to attend hearings on unjustified medical grounds and his failures to attend medical examination ordered by the court to establish whether he could participate in the proceedings23.
In a case, where the proceedings lasted 7 years and 2 months in two tiers of court, no violation was found; the Court explained its analysis as follows: "the applicant failed to show the diligence required of a party to proceedings governed by the rule that control of the course of civil proceedings rests with the parties, since he submitted several imprecise or unfounded procedural requests. As for the national courts, they cannot be held responsible for the fairly lengthy delays, making it possible to regard the overall length of the proceedings as excessive." (§ 209 - unofficial translation)24
C. THE CONDUCT OF THE COMPETENT AUTHORITIES
According to the Court, the conduct of the competent authorities can, of itself, result in a violation of the reasonable time requirement.
1°) National authorities' arguments accepted by the Court
The European Court accepts that certain circumstances leading to an exceptional overload of the courts may absolve the state of responsibility.
For example, in the Foti and others v. Italy judgment of 10 December 1982, before reviewing separately each set of proceedings in issue, the Court noted "the extent of the troubles that occurred in Reggio Calabria from 1970 until 1973 [which] ... had two important implications for the present case. Firstly, they engendered an unusual political and social climate, and one in which the courts could legitimately fear, in the event of precipitate convictions or severe sentences, a recrudescence of tension and even a recurrence of the disorders. Secondly, the troubles were not without effects on the workings of criminal justice. Such effects were felt mostly in the Reggio Regional Court, but the courts in Potenza, to which cases had been transferred, were also confronted with an exceptional backlog of business." It concluded that "these circumstances must be borne in mind and, in particular, normal lapses of time stemming from the transfer of the cases are not to be regarded as unjustified."
In the Buchholz case25, the Court took account of the national authorities' efforts to deal with the significant increase in the workload of the labour courts of appeal resulting from the economic recession and the backlog of cases that resulted, particularly in the Hamburg court. The number of judicial posts was increased in 1974, when the number of cases started to rise. It also noted that the Hamburg court managed to deal with more cases in 1976 and 1977 than in 1974 and 1975, while the average length of proceedings fell, and that a sixth chamber was established in 1976, to which more than half the cases pending before another chamber were reallocated. Finally, to expedite the cases coming before the labour courts, the Government put forward a proposal for legislative reform which was adopted by the parliamentary assemblies in 1979.
Despite the fact that what was at stake was important for the applicant and that the employment case in question lasted 4 years, 9 months and 16 days before three levels of courts, the Court concluded after a detailed examination of all the procedural stages and measures that in view of the circumstances of the case, in particular the defence strategy, which helped to delay the proceedings, there had been no violation of Article 6§1.
This reasoning was confirmed in the Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, in which the Court stated that "a temporary backlog of business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind".
Among the reasons recognised by the Court as excusing national authorities from responsibility for excessively lengthy proceedings are a number of specific factors such as ones connected with requests for international judicial assistance in criminal cases. In the Neumeister v. Austria judgment of 27 June 1968, it stated that "it is, for example, not possible to hold the Austrian judicial authorities responsible for the difficulties they encountered abroad in obtaining the execution of their numerous letters rogatory".
Neither are the authorities held responsible for the effects of lawyers' strikes, unless they fail to specify precisely their impact26. States must also do whatever they can to reduce any resultant delay (Papageorgiou v. Greece judgment of 22 October 1997).
2°) National authorities' arguments rejected by the Court
When states claim that a court is facing an exceptional backlog of cases, the Court generally states that "Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that they can meet the requirements of that provision", particularly with regard to the reasonable time condition. The requirement still applies, even if the delays are caused by the structure of the national judicial system27.
Contracting states can choose what steps to take to adjust their judicial systems to meet the reasonable time requirement, but when the authorities fail to take adequate measures states have to accept responsibility, because it is established case-law that the chronic overload of cases before one court does not provide a valid justification for the length of the proceedings (see, among others, the Dumont v. Belgium judgments of 28 April 2005 – French only).
Moreover, "it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of his or her civil rights and obligations".
This principle has been applied to proceedings before supreme courts, as in the Vergos v. Greece case of 24 June 2004, where proceedings before the Supreme Administrative Court had lasted 4 years and 11 months, and the Paummel v. Germany case of 1 July 1997, where proceedings before the federal Constitutional Court alone had lasted 5 years and nearly 3 months.
It also applies where several levels of courts are concerned. In such cases, states are responsible under Article 6§1 for any periods of inactivity, whether they are the consequence of courts' chronically excessive workload or a manifest shortage of judicial personnel.
The time taken to investigate cases is often the reason for excessively long criminal proceedings. In a uncomplicated case that had led to two sets of criminal proceedings lasting respectively 4 years and 4 years and 3 months the Court found a violation of Article 6§128. The authorities maintained that it had been difficult to locate witnesses but the Court did not accept this argument, particularly as the judgments of the criminal court had been handed down in absentia. In particular, it found that 3 years to investigate the complaint, to which the applicant had been joined as a civil party, was excessive in view of the financial implications for him.
In a criminal case in which the applicant had been prosecuted for aggravated slander after criticising the conduct of two judges, the Court found that there had been a violation of Article 6§1. Regarding the overall length of the case, which lasted 6 years, it commented that "this would, at first sight, appear to be a considerable lapse of time for a case of this kind". Having examined each stage of the proceedings the Court ruled that the investigation stage, in which there had been two unexplained periods of inactivity of fourteen and thirteen months, had been excessively long for a non-complex case29.
In civil cases, the Court considers that subject to the individual circumstances of each case and notwithstanding parties' responsibility for the conduct of proceedings, states must organise their legal systems in such a way that their courts can guarantee compliance with Article 6§1, and in particular ensure that proceedings are conducted expeditiously. Moreover, the courts retain their responsibility for securing compliance with the reasonable time requirements of Article 6§1, particularly by using their powers to counter any delaying tactics by one or other parties to the proceedings, as the Court stated in a case where the government had argued that the defendant's conduct was the main reason for delays in paternity proceedings (Costa Ribeiro v. Portugal judgment of 30 April 2003, French only).
It is clear from the Court's case-law regarding France and Germany that even if the case in question is of an accusatory nature and very dependent on the parties' taking the initiative (as is the case in these two countries), the courts must still use all their powers of enforcement to ensure that proceedings are conducted at the pace warranted by the nature of the case and the circumstances of the parties, set deadlines for them that meet the requirements of Article 6§1 and if necessary penalise any failure to abide by these decisions.
The Court does not accept the argument that applicants have not been adversely affected by delays. For example, in the Jorge Nina Jorge and others v. Portugal judgment of 19 February 2004 (French only), the Government claimed that the extension of the judicial stage of the proceedings had not caused detriment to the applicants as they had already received the compensation in question. The Court found that a violation of the Convention was possible even if there had been no detriment, which had in any case by no means been established.
This point, which could be affected by the entry into force of Protocol No. 14, will be considered again later.
The former Commission also ruled that making provision in domestic law for extensions of the time limits set for the state prosecutor to present his conclusions did not absolve the state from its responsibilities and it could still find the resulting delays excessive (Commission, Macedo v. Portugal of 6 November 1989, French only).
In the Desrues v. France judgment of 21 July 2005 (French only), the Government maintained that publication of a decree on 10 January 1992 setting out the rules and criteria for classifying and assessing psychiatric disorders arising from military action had led to an influx of requests for associated military invalidity pensions, resulting in delays in dealing with such cases. The European Court simply replied that delays in the domestic courts resulting from an influx of applications following a change in the regulations were not acceptable as a defence.
Similarly, a reform of Turkey's judicial system transferring jurisdiction for certain cases from military to civil courts might have contributed to delays30 but with reference to the principles cited earlier in the Zimmermann and Steiner case the Court stated that "Article 6 § 1 imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time" (Sahiner v. Turkey judgment of 25 September 2001).
A procedural adjournment may be necessary, particularly when a section of the supreme court has to make a ruling, but such rulings must lead to a final settlement, with no further relinquishment of jurisdiction (Hadjidjanis v. Greece judgment of 28 April 2005).
Occasionally, in addition to a backlog in certain courts, delays may be caused by a higher court's wish to hear certain similar cases together. The European Court considers such an approach potentially acceptable in the interests of the proper administration of justice but it must not lead to excessive length of proceedings.
The Hentrich v. France judgment of 22 September 1994 offers an illustration. In this case, "the length of the proceedings in the Court of Cassation was attributable primarily to that court's wish to hear together four cases that raised similar issues - an approach which is understandable but which, under Article 6 (art. 6) of the Convention, cannot justify substantial delay". The case had lasted 4 years on appeal, owing to a backlog in the court, and 2 years in the Court of Cassation. Altogether, the proceedings had lasted 7 years and 3 months in three tiers of courts, a period the European Court deemed to be unreasonable in view of what was at stake for the applicant, who had been deprived of her assets because the tax authorities had exercised their right of pre-emption31.
As has been shown, the Court takes account of the implications of cases for applicants. What types of proceedings does the Court consider to be sufficiently important for that purpose?
D. WHAT IS AT STAKE FOR THE APPLICANT
It is possible to identify from Court judgments situations that it considers to require greater expedition, but no real hierarchy emerges from which the requisite degree of diligence can be deduced. What is at stake therefore has to be determined according to the facts of the case.
"Priority" cases include:
§ Labour/employment disputes, involving dismissals, recovery of wages or the exercise of the applicant's occupation, where the Court considers that the court concerned must show particular diligence.
In a case over a contract between an independent architect and a local authority, the applicant's main client, the Court considered that special diligence was required of the courts dealing with the case, regard being had to the fact that the amount the applicant claimed was of vital significance to him and was connected with his professional activity (Doustaly v. France judgment of 23 April 1998).
In the Lechelle v. France judgment of 8 June 2004 (French only), the Court confirmed that cases concerning employment disputes covered matters of critical importance for individuals' work situation and had to be settled with particular expedition. With reference to the Obermeier v. Austria (28 June 1990), Buchholz v. Germany (6 May 1981) and X v. France (31 March 1992) judgments, the Court said that the case had been concerned with the applicant's dismissal proceedings and that the issues at stake called for exceptional diligence from the domestic courts.
The Court has recently reiterated its position concerning employment cases32.
§ Cases on compensation for accident victims: when the accidental death of a family member deprives the applicants of their principal means of financial support, the latter have a major personal interest in securing a rapid court decision on the award of compensation33.
In a case where the applicant had sought compensation for a car accident, the Court noted that "after a car accident the applicant became partly disabled, and what was at stake for him was a considerable amount mainly intended to compensate his disablement and loss of working capacity. Under these circumstances the Court finds that special expedition was called for"34.
§ the Court also considers that the length of an applicant's prison term requires a certain diligence.
In the Soto Sanchez v. Spain judgment of 25 November 2003 (French only), the Court said that the case was of particular significance to the applicant because the sentence of 4 years and 2 months' imprisonment initially handed down by the Audiencia Nacional had been increased to 9 years by the Supreme Court and he had been serving this sentence when he appealed to the Constitutional Court. The Court found that the length of proceedings – 5 years, 5 months and 18 days in the Constitutional Court alone – was unreasonable
The Court has stated that in criminal cases, the right to be heard within a reasonable time "is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate" (Stögmüller v. Austria judgment of 10 November 1969).
In the Caloc v. France judgment of 20 July 2000, the Court held that "special diligence was required of the relevant judicial authorities in investigating a complaint lodged by an individual alleging that he had been subjected to violence by police officers".
§ Cases of police violence
In a Bulgarian case concerning unlawful police violence and state liability for damages arising from such conduct, the Court stated that "as regards the importance of what was at stake for the applicant, the Court observes that his action concerned payment for grave injuries sustained as a result of police violence. In such cases special diligence is required of the judicial authorities" (Krastanov v. Bulgaria judgment of 30 September 2004).
In cases where delays could deprive the decision of any value, the Court requires the authorities to display not just a certain diligence but exceptional expedition.
§ The same applies to applicants' state of health, let alone their life.
This applied to cases before the French administrative courts concerning state liability for and the award of damages to haemophiliacs contaminated by the HIV virus during blood transfusions.
For example, exceptional diligence was called for in the particularly tragic X v. France case of 31 March 1992, in which the applicant, a haemophiliac who had undergone blood transfusions, died of AIDS while his case was before the European Court. Like the Commission, the Court took the view that "what was at stake in the contested proceedings was of crucial importance for the applicant, having regard to the incurable disease from which he was suffering and his reduced life expectancy."
In a similar case, the Court stated that "what was at stake in the proceedings in issue was of crucial importance to the applicant, who has been HIV-positive from birth. .... In short, exceptional diligence was called for in this instance, notwithstanding the number of cases to be dealt with" (Henra v. France judgment of 29 April 1998)35.
What is at stake must be critical if the Court is to find a violation. It has drawn a distinction between applicants who are HIV infected, who are entitled to exceptional diligence, and those who are dependents or parents of AIDS victims, to whom a lesser degree of diligence applies. In a single case with several applicants (A and others v. Denmark of 8 February 1996, in which the applicants' conduct contributed significantly to the length of proceedings) the former group were found to be victims of a breach of Article 6§1 but not the latter.
§ The advanced age of applicants may also require the rapid conduct of the proceedings.
§ In child custody or parental authority cases, the Court is sensitive to the need to maintain family links and ensure that parent-child relationships are not damaged by the passage of time. It generally emphasises the need for custody cases to be dealt with speedily (as in the Hokkanen v. Finland judgment of 23 September 1994, in which the Court found that the 18 months of proceedings were not in breach of Article 6§1).
§ Finally the same principle applies to issues relating to individuals' physical state and capacity.
A detailed list of cases in which the Court has been more demanding about the length of proceedings appears at the end of this report36.
This notion of what is at stake in a case must be set alongside, though not confused with, the new condition laid down in Protocol No 14, which requires applicants to show that delays in their cases have caused them significant disadvantages.
Article 12 of the Protocol states: "Paragraph 3 of Article 35 of the Convention shall be amended to read as follows: The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that : …. b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal."
It will be necessary to see how the Court applies this new ground of inadmissibility, which enables it to dismiss length of proceedings cases in which applicants are unable to show that they have suffered significant disadvantage.
The Protocol does not define "significant disadvantage" so the Court itself will have to carry out this task. However, applicants will undoubtedly be asked to supply information in support of their claims that has not so far been required, on such matters as their financial situation and the impact of any delays on their legal, personal and financial position.
One ground that might arise in connection with a potential application for compensation could be that of loss of opportunity37.
Over the two years that follow the Protocol's entry into force, many outstanding points will be gradually clarified by the chambers of the Court and the Grand Chamber, the only bodies empowered to apply the new admissibility criterion (Article 20§2 of the Protocol), after which single judges and committees of three judges will also be able to use it.
The Protocol was opened for signature by Council of Europe member states on 13 May 2004. On 3 June 2005, it had been ratified by Armenia, Denmark, Georgia, Ireland, Malta, Norway and the United Kingdom.38
E. OVERALL ASSESSMENT OF THE CIRCUMSTANCES OF THE CASE
Finally, and above all when the very length of the proceedings makes it difficult to judge them reasonable, the Court can make an overall, or global, assessment of the circumstances of the case.
This applies particularly when a case has been dealt with by a single tier of courts (especially when a supreme court rules in first and final instance)39. This offers sufficient grounds for a finding of excessive length of proceedings, if otherwise warranted.
This is clearly illustrated by the Obermeier v. Austria judgment of 28 June 1990, in which the Court stated: "The parties discussed various criteria which the Court has applied in such cases, such as the exact period to be taken into consideration, the degree of complexity of the case, the parties' conduct, and so on. The Court notes, however, that its case-law is based on the fundamental principle that the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. In this instance those circumstances call for a global assessment so that the Court does not consider it necessary to consider these questions in detail." After considering the circumstances of the case, particularly in terms of what was at stake and its complexity, the Court concluded that "the fact remains, however, that a period of nine years without reaching a final decision exceeds a reasonable time. There has therefore been a violation of Article 6 § 1 (art. 6-1) on this point too."
In a compulsory purchase case that led to three sets of proceedings, two of which were pending and which involved, respectively, two and three tiers of jurisdiction, the Court found that the delays in proceedings lasting more than 17 years were largely attributable to the conduct of the authorities and of the courts concerned (Nastou v. Greece judgment of 16 January 2003, French only).
In the Comingersoll SA v. Portugal judgment of 6 April 2000, the Court thought that the circumstances of the case had to be assessed as a whole, and that "a period of seventeen years and five months for a final decision that has yet to be delivered in proceedings issued on the basis of an authority to execute – which by their very nature need to be dealt with expeditiously – cannot be said to have been reasonable".
In connection with a number of legal disputes between an applicant and the social security authorities, the Court applied its normal criteria to the circumstances of the case and concluded that a total duration of more than 14 years for this type of case was sufficient by itself to make it incompatible with the reasonable time requirement in Article 6§1 of the Convention (J-M F. v. France judgment of 1 June 2004, French only).
II. CALCULATING THE LENGTH OF PROCEEDINGS AND THE FACTORS INFLUENCING THE CALCULATION
A. THE STARTING POINT
The starting point of proceedings is sometimes disputed by the parties and may be difficult to determine in the circumstances. For example, in the Darnell v. United Kingdom judgment of 26 October 2003, in which the circumstances called for an overall assessment, the Court did not consider it necessary to rule on the disputed starting date and stated that even if it were to adopt the Government's position "the lapse of time of nearly nine years until the Employment Appeal Tribunal gave its reserved judgment ... cannot, in the circumstances of the present case, be regarded as "reasonable"."
When negotiations take place between the parties on the level of compensation payable before the case comes before the courts, the Court takes no account of their duration. It considers that they are not covered by Article 6§1 since none of the negotiators can impose a settlement on the others and the discussions may be terminated at any time (Lithgow and others v. United Kingdom judgment of 8 July 1986).
The starting point of proceedings is quite specific in criminal cases. Close examination of Article 6§1 shows that the notion of a criminal charge may include stages of the procedure that do not necessarily and automatically come within the scope of the criminal prosecution.
According to the Court's case-law, the starting date is not automatically that on which an individual was brought before the courts. It may be prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened.
In the first length of proceedings case referred to the Court, the Commission initially took as the starting point the date on which the applicant was first questioned by the investigating judge (21 January 1960) and not, for example, that of the indictment (17 March 1964). The Court adopted a middle path by taking as the starting point 23 February 1961: the date on which the investigating judge decided to open an investigation of the applicant.
According to the Court, "charge", for the purposes of Article 6§1, may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", a definition that may encompass other measures implying such an allegation that also have a substantial effect on the suspect's situation40.
If the reasonable time requirement begins when a person is “charged”, that is when he is substantially affected by the situation. The relevant date was not the one on which fiscal penalties were imposed on the applicant’s companies – and not on himself so there was no reason for him to suppose he was under investigation in his personal capacity - but the one on which he was questioned for first time as a suspect, and thus became substantially affected.
In its Hozee v. Netherlands judgment of 22 May 1998, the Court noted that "even if a fiscal penalty or tax surcharge may in certain circumstances be considered a criminal charge within the meaning of Article 6 § 1 of the Convention (see the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47), the penalty in the instant case was imposed by the tax authorities at the end of 1981 on the applicant’s companies and not on him personally. There was nothing to suggest that the applicant at that stage was himself suspected of fraud, the offence with which he was eventually charged. Moreover, the imposition of a fiscal penalty under section 21 of the General Act on State Taxes does not give rise to criminal proceedings in the absence of elements which would justify the intervention of the FIOD [the tax authorities] (paragraphs 23, 32, 33 and 41 above)".
In the Lopez Sole y Martin de Vargas v. Spain judgment of 28 October 2003, the Court accepted the 8 June 1985 specifying: «The same day, the instruction judge ordered a searching in the applicant's permanent address, who was carried out the following day and had important effects on the situation of the applicant» (§ 25)
When national legislation authorises victims to bring a separate civil action for damages, for example following a traffic accident, the criminal proceedings may then simply result in the criminal conviction of the perpetrator of the accident, with no possibility of compensation for the victim.
In such cases, the Court considers that bringing a civil action amounts to a waiver of the applicant's civil rights in the criminal proceedings, even if the civil action has been brought because of delays in the criminal case. The criminal proceedings are then no longer concerned with the determination of the applicant's civil rights and obligations or of any criminal charge against him and an application that is solely related to the length of the criminal proceedings becomes incompatible ratione materia with the Convention (final decision on admissibility, Garimpo v. Portugal of 10 June 2004 – French only).
In a case concerning economic and financial crime, the Court took as the starting point the date on which the authorities seized the cheque the applicant wished to cash (Nuvoli v. Italy judgment of 16 August 2002).
In a case of forgery and fraud, the starting point was taken to be that on which searches were carried out at the first applicant’s head office and the second applicant’s home, and not the earlier one when the crown prosecutor formally announced that the second applicant was suspected of forgery and fraud (Stratégies et Communications and Dumoulin v. Belgium judgment of 15 July 2002 – French only).
In a fraud case, the Court did not accept the authorities' contention that the starting date should be that of the applicants' first appearance before the investigating judge. Instead it opted for the earlier date when the police had first questioned the applicants and one of them had made a confession. This was when the applicants had realised that inquiries were being carried out into their activities and the second applicant had even admitted the allegations. It was therefore a measure that had substantially affected those concerned (Martins and Garcia Alves v. Portugal judgment of 16 November 2000 – French only).
Article 71 of the Portuguese Code of Criminal Procedure authorises the victims of criminal offences and, in certain circumstances, their immediate families, to actively intervene as "assistentes" in criminal proceedings, that is as assistants to the public prosecutor.
In the Moreira de Azevedo v. Portugal judgment of 23 October 1990 (French only), the Court found that the applicants' civil rights and obligations only came into play when they intervened as “assistentes”, that is on 1 February 1993. At that point, they demonstrated that they were interested in securing not only the criminal conviction of the accused but also pecuniary compensation for damage suffered. This was therefore the date on which the period to be taken into consideration started. The Government's contention that at this point the applicants had not yet requested the speeding-up of the procedure, in order to exhaust domestic remedies in accordance with Article 35§1 of the Convention, changed nothing. The applicants had probably made this request when they considered that the length of the proceedings had exceeded the reasonable limit.
In civil cases, the starting date normally coincides with the date when the case was referred to the competent court, but other starting points linked to specific types of cases may be identified.
In a case in which the applicants' company was first placed in judicial administration and then declared insolvent, the Court calculated the length of proceedings from the date on which the wages of the applicants, who had not been paid for several months, were recognised by the Portuguese court as claims on the company, rather than that of the declaration of claims as part of the subsequent insolvency proceedings, as the authorities proposed (Oliviera Modesto and others v. Portugal judgment of 8 June 2000 – French only).
The Court takes a pragmatic approach to the date on which a decision is reached or handed down. For example, if judgment is delivered on day x but the text is only lodged with the registry on day x+20, the Court recognises the latter date as the date of judgment (see, among others, the Ridi v. Italy judgment of 11 May 1990, and Ceteroni v. Italy judgment of 21 October 1996)
Specific lengths of proceedings may occur in administrative cases. In the Marschner v. France judgment of 28 September 2004, contrary to the government's position, the Court ruled that the proceedings had started when the applicant first referred the matter, as he was required to, to the relevant minister, rather than when he subsequently appealed to the administrative court against the minister's decision to refuse his request41. This was also the case in the König v. Germany judgment of 28 June 1978, where the applicant had been unable to have the lawfulness and expediency of the impugned administrative acts examined in preliminary proceedings (Vorverfahren) before the administrative authority.
Since its Golder v. United Kingdom judgment of 21 February 1975, the Court has held that this could apply to any administrative authority, such as a district social council (Olsson v. Sweden judgment of 27 November 1992).
In an expropriation case in which the administrative and judicial courts had simultaneous jurisdiction, the Court took the entirety of the proceedings into account, on the grounds that although the applicant had launched certain proceedings after her application to the Commission, they should still be considered by the Court because the second set of proceedings, which was still pending, was intended to secure compensation for the applicant for the illegal expropriation of her property by the public authorities (Guillemin v. France judgment of 21 February 1997).
Generally speaking, the starting point occurs when a case is referred to a court of first instance, but it may also be the time of referral to a supreme court, since the latter frequently hear cases in first and final instance.
Other specific starting points may include particular procedural measures such as orders to pay in France and Italy, requests for interlocutory measures, objections to an enforcement measure or the defendant's personal appearance in oral proceedings.
Another feature common to all countries is that there is a clearly established case-law concerning the Court's temporal jurisdiction and how this affects its assessment of the length of proceedings. When determining the starting date of proceedings, the Court may not include any period prior to the state's recognition of the right of individual petition - which may be quite distinct from the date of accession to the Convention - even if in practice the relevant proceedings started before that date. In such cases, the Court makes it clear that in assessing the reasonableness of the time that elapsed after the official starting date, account must be taken of the state of proceedings when the defending state accepted the right of individual petition.
For example, in the Kanoun judgment of 3 October 2000 (French only), where the relevant proceedings had started in 1975, the Court was only able to take account of the period since 2 October 1981, the date of French recognition of the right of individual petition. However, citing the Foti v. Italy judgment of 10 December 1982, it stressed the need to take account of the state of proceedings on that date.
This is established case-law. In the Proszak v. Poland judgment of 16 December 1997, the starting point was 1 May 1993, when Poland's recognition of the right of individual petition for the purposes of Article 25 of the Convention took effect, even though the original application to the Polish court had been on 25 October 1990.
In its Marciano Gama Da Costa v. Portugal decision of 5 March 1990 (French only), the Commission first noted that it itself had no temporal jurisdiction to consider the length of proceedings prior to 9 November 1978, when the defending government ratified the Convention and recognised the right of individual petition. Nevertheless, in accordance with its established case-law on the subject, it had to take account of the state of the proceedings on that date.
In the Zana v. Turkey judgment of 25 November 1997, although the proceedings in question seemed relatively brief (1 year and 6 months), the Court found a breach of Article 6§1 and took account of the fact that by the date of deposit of Turkey’s declaration the proceedings had already lasted 2 years and 5 months42.
The Court did not accept a government's argument that even facts subsequent to recognition of its compulsory jurisdiction were excluded from its scope where they were merely extensions of an already existing situation, which it had no authority to consider43.
A table is appended44 showing the date of accession to the Convention of each contracting state, and the date of recognition of the right of individual petition if this is different. Since Protocol No 11 came into force on 1 November 1998, it has not been possible to accede to the Convention without recognising the right of individual petition.
This is of particular relevance when determining how far back one can go in examining the case-law relating to particular states, particularly those that have most recently ratified the Convention.
Finally, certain periods are not taken into account when calculating the length of proceedings for consideration by the Court. This applies to issues referred by one of the courts concerned to the Court of Justice of the European Communities for a preliminary ruling (Koua Poirrez v. France judgment of 30 September 2003 and Pafitis and others v. Greece judgment of 26 February 1998).
B. THE END OF THE PERIOD CONCERNED
In criminal cases, the period ends when final judgment is handed down on the substantive charges. This generally takes the form of an acquittal or conviction with no further right of appeal, but may also be a prosecution decision to terminate proceedings or a decision by the court that the case is time-barred45.
However, in the Stoianova and Nedelcu v. Romania judgment of 4 August 2005 (French only), the Court ruled that the applicant's discharge could not count as a final domestic decision because the Romanian Code of Criminal Procedure authorised the prosecution service to quash the discharge order and reopen criminal inquiries without any specified time limit.
In civil proceedings, the period ends when the decision becomes res judicata, but in complex cases, such as ones concerned with expropriation, the Court considers proceedings in their entirety. In the Guillemin v. France judgment of 21 February 1997, it agreed with the Commission that "the period whose reasonableness falls to be reviewed takes in the entirety of the proceedings, right up to the decision which disposes of the dispute ("contestation") (see, mutatis mutandis, the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81, p. 13, para. 29, and the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, p. 62, para. 65). In the instant case, resolving the dispute, which could have been amicably settled, entailed bringing two sets of proceedings: the first in the administrative courts, which alone have jurisdiction to assess whether the public interest of an expropriation is lawful, and the second, conducted in both the administrative and the ordinary courts simultaneously, to secure compensation for the applicant for the illegal expropriation of her property by the public authorities. The latter proceedings are still pending. The length of time to be considered accordingly exceeds fourteen years already (19 November 1982 - 22 January 1997)."
In cases concerning civil liability, the final date is that of the decision setting the level of damages to be paid, rather than the one establishing the principle of liability46.
In the Silva Pontes case47, the Court stated clearly that "if the national law of a State makes provision for proceedings consisting of two stages - one when the court rules on the existence of an obligation to pay and another when it fixes the amount owed - it is reasonable to consider that, for the purposes of Article 6 para. 1 (art. 6-1), a civil right is not "determined" until the amount has been decided. The determination of a right entails deciding not only on the existence of that right, but also on its scope or the manner in which it may be exercised (see, among other authorities, the Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-A, p. 14, para. 31), which would evidently include the calculation of the amount due." However the Court may decide that the first stage of the proceedings has itself exceeded the reasonable time.
In principle, the period concerned covers all the proceedings, including those spent on appeal.
In the case of references to constitutional courts, the Court has to decide whether they have influenced the outcome of the proceedings in question. If this is the case, their deliberations are included in the length of proceedings.
For example, in the Deumeland v. Germany judgment of 29 May 1986, the Court ruled in connection with the German Constitutional Court that "although it had no jurisdiction to rule on the merits, its decision was capable of affecting the outcome of the claim", and found a violation of Article 6§1.
The Court considers that time elapsed that is attributable to administrative authorities is also attributable to the state, even if these authorities are distinct from the central authorities. This applies, for example, to local authorities, as in the Kurt Nielsen v. Denmark judgment of 15 February 2000, in which the Court stated that "the Contracting Parties are, however, also responsible for delays attributable to public-law organs, like municipal authorities, which - although they are not organs of the State - perform official duties assigned to them by law". Also of relevance is the H. v. United Kingdom judgment concerning the dilatory conduct of a local county council committee responsible for the supervision and care of under-age children.
In calculating time elapsed, the Court may also include any implementation procedure. The execution of a judgement, of some courts, must be regarded as forming an integral part of the “proceeding” within the meaning of article 6 (see, in particular, Hornsby v. Greece, judgement of March 19, 1997, § 40 and following). In the duration of civil procedures, the Court underlined “that the execution is the second phase of the procedure and that the asserted right finds its effective realization only at the moment of execution”48.
In the Pinto de Oliveira v. Portugal judgment of 8 March 2001 (French only), it found that the proceedings to be taken into consideration started on 11 May 1993, when the matter was referred to the Mangualde court, and were still under way at the time of judgment, because the uncompleted execution proceedings that had subsequently been initiated had to be taken into account in deciding whether the length of proceedings was reasonable.
In an Italian case, the Court refused to express a view on whether under Italian law enforcement proceedings were autonomous, adding that "it is with reference to the Convention and not on the basis of national law that the Court must decide whether, and if so when, the right asserted by ... [the applicants] actually became effective".49 In this dispute, the Court considered that that the enforcement proceedings must be regarded as the second stage of the initial proceedings, which had not been completed as the judge responsible for enforcement proceedings had not yet ruled.
The authorities' failure to implement a final decision within a reasonable time may also result in a violation of Article 6§1.
This is particularly the case when the obligation to implement a decision devolves on an administrative authority, as in a number of recent judgments: Metaxas v. Greece of 27 May 2004, Timofeyev v. Russia of 23 October 2003, Prodan v. Moldova of 18 May 2004 and Romashov v. Ukraine of 27 July 2004. In the Metaxas case (judgment in French only), the Court found that in violation of Article 6§1 the national authorities had failed to comply within a reasonable time with a judgment of the Audit Court, which had been handed down on 13 April 2000 but only implemented on 19 September 2001, thus depriving it of all useful effect.
Similarly, in the SARL IZA and Makrakhidze v. Georgia judgment of 27 September 2005, the Court stated that "by failing for over four years to ensure the execution of the binding judgment of 14 May 2001, the Georgian authorities have deprived the provisions of Article 6 § 1 of the Convention of all useful effect".
Like the Commission previously, the Court takes account of extraordinary appeals. In its admissibility decision of 14 January 1998 in the Z.C. v. Poland case (French only), the Commission noted that the Supreme Court had twice accepted extraordinary appeals from the applicant and quashed decisions of the courts of first instance for manifest errors of law. Power to authorise such appeals was vested in the State Prosecutor and the Minster of Justice. The Supreme Court, which considered such appeals, had the power to invalidate, quash or confirm lower courts' decisions. Its examination was therefore decisive for the applicant's civil rights and obligations, within the meaning of Article 6§1 of the Convention, so all the appeals, including extraordinary ones, had to be taken into account when calculating the length of the proceedings.
It often happens that contested proceedings are still pending when an application is made to the European Court, but like the Commission it may find that the reasonable time requirement has been exceeded well before the end of the proceedings, in which case the exhaustion of domestic remedies requirement will not be applied50.
The Court's oversight may extend to subsidiary proceedings. In the Robins v. United Kingdom judgment of 23 September 1997, which concerned an application for costs under the domestic Legal Aid Act, the Court found that "the costs proceedings, even though separately decided, must be seen as a continuation of the substantive litigation and accordingly as part of a 'determination of ... civil rights and obligations'". It referred to a number of previous judgments, including Silva Pontes v. Portugal of 23 March 1994, Di Pede v. Italy and Zappia v. Italy of 26 September 1996 and Hornsby v. Greece of 19 March 1997.
Sometimes, a trial has not even been completed. In the Grauslys v. Lithuania judgment of 10 October 2000, the commercial director of a private company was suspected of fraud and the prosecution authorities launched proceedings. The case lasted 5 years without judgment ever being handed down at first instance.
The greater the impact of any delay on the outcome of proceedings, the more severely the Court judges the case. An example is when the application of a time limit prevents an applicant from obtaining a decision on the merits of the case. In the Textile Traders Limited v. Portugal judgment of 27 February 2003 (French only), the Court found it particularly striking that the prosecution authorities had had to rule on applications for the setting aside of several procedural measures because they had not been notified to the applicant company. The criminal proceedings were finally terminated because the time limit had been exceeded, thus preventing the company from obtaining a decision on the application it had made in the proceedings.
Finally, even greater diligence is required when the proceedings seek to establish the state's liability for violation of the reasonable time requirement. The Vaney v. France judgment of 30 November 2004 (French only) concerns an action to establish whether the state was responsible for, and if so should be penalised for, the excessive length of previous judicial proceedings. It concluded that the proceedings lasting 2 years and 7 months before the court of appeal and 2 years and nearly 4 months before the Court of Cassation had exceeded the reasonable time requirement.
REASONS FOR DELAYS AND THEIR REMEDIES:
FINDING REASONABLE PERIOD
The second part of the report is concerned:
1. The reasons for delays as they emerge, explicitly or implicitly, from Court judgments, Court and Commission admissibility decisions and material supplied by the Execution of Court Judgments Department.
The Department notes that Court judgments are becoming less and less explicit about the reasons for delays and that it is necessary to seek clarification on the relevant impediments and difficulties from the national authorities concerned. Committee of Ministers resolutions are interesting in this regard because they provide valuable information on the reforms carried out, which make it possible to identify, retrospectively, the one-off and more structural problems they are designed to remedy.
There are three main causes of delay:
§ ones external to the legal and judicial systems properly speaking, which relate to a political or economic context;
§ ones that are common to all types of proceedings;
§ ones that apply to a particular category of proceedings, depending on whether they are civil, criminal or administrative.
2. The main reforms introduced in domestic systems following adverse Court judgments and domestic remedies for seeking redress for detriment suffered as a result of excessively lengthy proceedings or for expediting proceedings.
3. The times considered to be reasonable the excessive and “pathological” delays having been abundantly described, it is appropriate to examine, to finish, and after having pointed out the main trends of the Court, some cases of delay considered to be reasonable. Other cases are in a more detailed manner described in the tables appearing as annexes 3 and 4 of the report.
I. REASONS FOR DELAYS
A. External reasons for delays
§ Origin of delays: major political events
The taking into account of the political events by the Court differs according to whether the cases are received by the ordinary courts or in front of the constitutional court of the State in question: this distinction was formalized in the judgement Süssmann v. Germany and the posterior cases.
Surrounding the reunification of Germany in 1990. the country was, for several years, the subject of violation judgments as a result of the backlog of cases in the Constitutional Court, overwhelmed with major issues connected to reunification
Many of these were concerned with compensation for the victims of expropriation between 1945 and 1949 in the Soviet occupied zone of Germany following the agrarian reform or after 1949 in the former GDR.
The Court recently examined one of these cases from the length of proceedings standpoint, and found the application inadmissible51. It referred to its Süssmann case-law of a few years earlier, which recognised the special role of constitutional courts in democratic states.
In the Süssmann v. Germany judgment of 16 September 199652, the Court stated (§§55-57): "Its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms."
In this case, which concerned a dispute over the level of a supplementary retirement pension that affected many civil servants, the Court had to strike a balance between the reasonable time requirement and the more general principle of the proper administration of justice, which in this case justified the grouping together of twenty-four cases and the Constitutional Court's giving priority to a series of other urgent cases linked to German reunification and affecting the employment contracts of 300 000 civil servants from the former GDR. It concluded that there had been no violation of the Convention.53
Another important case concerned the constitutionality of legal provisions introduced when the former East German social and retirement insurance system was integrated into that of the Federal Republic, and in particular how supplementary retirement pensions should be treated. In several inadmissibility decisions54, the Court found that the time taken to conduct proceedings before the Constitutional Court was not excessive, given their complexity and in line with its Süssmann case-law.
The case Trikovic v. Slovenia55 refers to the situation new States born of dismantlement of the former Yugoslavia: the applicant, Slovenian of origin Serb supported that its request concerning its military pension before the constitutional Court had been judged too slowly (of a duration of 2 years and 7 months). However the Court does not retain the violation of the reasonable duration of procedure before the constitutional Court of Slovenia: stressing that the file of the applicant was the first of a long series of disputes of an extreme complexity, formed by the military personnel of ex-Yugoslavia, it recognizes that this situation implied for the Court an examination in detail of the case.
Contrary, when the delays are the fact of ordinary courts, and in spite of a context of a general and disturbed policy, the Court shows itself more demanding towards the State concerned recalling him its conventional engagement in accordance with the article 6§1.
With its return to democracy in 1978, Spain experienced considerable judicial problems. In the Union Alimentaria Sanders SA judgment, the Court expressed its awareness that "Spain had to overcome serious difficulties during the restoration of democracy. It duly appreciates the efforts made by the Spanish authorities to improve public access to the courts and to overhaul the country's judicial system. It reiterates, however, that in ratifying the Convention, Spain undertook to organise its judicial system in such a way as to ensure that it satisfied the requirements of Article 6 para. 1 [of the Convention]".
The Süssman case-law was confirmed by the Court in the Gast and Popp v. Germany judgment of 25 February 2000, which stated that "while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice."
It reaffirmed the point in connection with the Portuguese Constitutional Court in the Rosa Marques and others v. Portugal judgment of 25 July 2002 (French only), in which it accepted the government's contention that the reasonable time requirement could not be interpreted in the same way for an ordinary and a constitutional court, given the latter's role as guardian of the constitution and the priority it had to give to certain cases that were socially and politically more important. Nevertheless, it found a violation of Article 6§1, since the case had concerned expropriation proceedings of no particular complexity that had lasted 8 years and 2 months in four separate levels of courts.
Concerning trial and appeal courts of Portugal, this country had faced the same difficulties a few years earlier, as the Court acknowledged in similar terms: "It (the Court) cannot overlook that the restoration of democracy as from April 1974 led Portugal to carry out an overhaul of its judicial system in troubled circumstances which were without equivalent in most of the other European countries and which were rendered more difficult by the process of decolonisation as well as by the economic crisis ....)"56. Nevertheless, the Court found in this case that Portugal was in breach of its Convention obligation to ensure that cases were heard within a reasonable time.
Spain undertook significant reforms of its national judicial system under the organic laws of 10 January 1980 establishing a judicial services commission and 1 July 1985 on the judicial system. In Barcelona four new courts of first instance started operating in September 1981 and new judicial districts were established.
§ Origin of delays: the transition from a planned to a market economy
The political and economic upheavals in certain contracting states led to major changes in the organisation of their court systems.
The Court's case-law concerning states that have signed the Convention since the fall of the Berlin wall reveals a link between problems of length of proceedings and the changes in the political and economic systems of eastern Europe. The transition from planned to market economy has led to changes in citizens' relationship to the law and proceedings and judges' training, reforms in the law of procedure and a reallocation of responsibilities between courts, which in turn have resulted in delays.
New constitutional principles of an independent judicial system and the separation of powers have gradually been established. These changes have led to delays in proceedings, as has the Court's own case-law, which has forced several of these countries to reform their civil and criminal procedure.
The Czech Republic introduced judicial reforms in the years after 2000. In the Zouhar v. Czech Republic judgment of 11 October 2005 (French only), the Court acknowledged that the regional court had had to refer the matter on a number of occasions to other national authorities for the purposes of the proceedings before it and that the national judicial system had been reorganised while the case was under way.
In the Podbielski judgment of 30 October 1998, the Court acknowledged this problem with regard to Poland, in connection with an applicant still awaiting a final decision. It noted that "the delay in the delivery of a final decision on the applicant’s action has been caused to a large extent by the legislative changes resulting from the requirements of the transition from a state-controlled to a free-market system and by the complexity of the procedures which surrounded the litigation and which prevented an expeditious decision on the applicant’s claim. The Court recalls in this respect that Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to decide cases within a reasonable time ..... Therefore the delay in the proceedings must be mainly attributed to the national authorities" (§38).
B. Delays common to all types of proceedings
1°) Delays originating the procedure
§ Origin of delays: geographical problems
The uneven distribution of courts within countries emerges frequently as a problem from the Court's judgments, which refer to excessive caseloads resulting from a geographical organisation that has failed to respond to demographic and economic changes.
The problems caused by the excessive workloads of certain courts are described in some detail in the Union Alimentaria Sanders SA v. Spain judgment of 7 July 1989: lower courts overflowing (each of the Barcelona courts of first instance had to deal with an average of 1 800 cases), a 62% increase between 1981 and 1984 in the volume of cases dealt with by the Barcelona court of appeal and so on. The same story occurs in many of the contracting states at different points of their legal history. In the Spanish case, despite the measures taken by the state the Court found that 5 years and 2 months of proceedings before two levels of courts was excessive.
Following various findings of length of proceedings violations, the Italian authorities informed the Committee of Ministers that certain reforms had been introduced. "Act No. 30 of 1 February 1989 (which entered into force the same year), concerning the courts of first instance (preture), redefines the territorial jurisdiction of these courts which is henceforth not limited to the department. This enactment has made it possible to abolish some 273 courts of first instance which had low workloads and to redistribute the magistrates and the auxiliary personnel among the courts with heavy workloads."57
In Hungary, the Supreme Court's workload has declined significantly following a reform of the judicial system in 2002. This transferred that court's appeal functions to five appeal courts established in 2003 and 2004.58
§ Origin of delays: transfer of the judges, their shortage number
Delay is caused by the resignation of the judge hearing the case, delayed or non-replacement and the problem of recruiting judges.
This issue is linked to how judges are recruited and managed.
The problem has occurred in many contracting states at different periods and is often combined with other difficulties affecting the functioning of courts, such as inadequate support staff. The Court regularly points out that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. If the measures taken are not sufficient to improve the situation, it holds the national authorities responsible.
Shortage of judges sometimes impedes the application of procedural measures that would otherwise help to avoid delays. In the Guincho case, it emerged that under Articles 159 and 167 of the Portuguese Code of Civil Procedure applicable at the time the judge could submit a request for service of a writ, after which the registry had two days to submit it to the relevant court and the latter then had to order the writ to be dispatched for service within five days (§11). In this case, however, the judge who issued the request for the writ in early December was transferred and was replaced by a colleague who reissued the request on 18 January and various subsequent occasions, but did not obtain it until 18 June, that is six months on.
One of many such cases concerned civil proceedings challenging an encumbrance59, in which the judge in charge was transferred and the case remained dormant until he was replaced nearly seventeen months later.
More recent examples include a number of Belgian cases, in particular the Willekens v. Belgium judgment of 24 April 2003 and the Dumont v. Belgium judgment of 28 April 2005. In the latter (French only), the Court found that the sole cause of the delays before the courts of first instance of the Brussels appeal court was shortage of judicial personnel, which in turn resulted from recruitment difficulties linked to the legal requirement for judges to be bilingual in French and Dutch.
§ Origin of delays: time actually spent by judges on extra-judicial activities
Certain Italian and other cases suggest that judges' participation in statutory extra-judicial activities, such as chairing crime prevention committees, election monitoring and so on, considerably reduces the time they can spend at hearings and handing down judgments. Statistics on judicial staffing levels may therefore be misleading regarding the effective time spent to judge.
There were many other reasons for delays in the Capuano case, but the Court also noted that "the hearing was postponed to 24 January 1978, but did not take place until 31 January, because of a further adjournment due to municipal elections".
In Slovakia, the 2003 legislation on court officials that came into force on 1 January 2004 introduced the post of principal court registrar to enable administrative staff to perform various tasks that do not require the involvement of judges.
§ Origin of delays: the systematic use of benches of judges at first instance
The use of benches of judges, the collegial principle, in conjunction with inefficient management of judicial manpower, may be a source of delays. If a member of a bench is absent or unavailable or has been transferred, hearings may be postponed. The case-law of the Court gives pictures of this kind of delay in civil courts as well as in criminal courts. Moreover, although benches are considered to be a guarantee of impartiality and a high standard of justice, using them even for minor cases and disputes over small sums calls for a significant number of judges.
Case-law examples in civil matters:
The Bento da Mota v. Portugal judgment of 28 June 2001 is an example. In a minor civil liability case, two hearings were deferred because of the absence of a judge of the lower court. There were further delays for other reasons and more than 3 years were lost after an expert report had been submitted.
The collegial principle had been judged to be a cause of delays in Italy.
In Italy, there were reforms in 1995, introducing justices of the peace, and 1999, establishing single judge courts. The jurisdiction of single judge courts of first instance was also considerably increased. France set up in 200260, the establishment of juges de proximité, judges from the civil society for dealing with small claims.
Case-law examples in criminal matters:
This applies to criminal courts in certain contracting states where a professional chair of the bench sits alongside two non-professional judges61.
The single judge in criminal matters has been established in several contracting states for small claims. Already established in France for petty offences in district courts, he is, by law 95-125 of 8 February 1995 introduced in criminal courts for some offences like those of the highway code62.
§ Origin of delays: backlogs of cases
A backlog in a court's caseload is not in itself a matter for criticism if it is temporary. If it continues, however, the Court is likely to hold the national authorities responsible for failing to take the necessary action to resolve the situation. Thus, in the aforementioned Guincho case, the steps taken by the authorities to deal with the foreseeable increase in cases were judged to be too little and too late.
Reform suggested by the Court
This raises the associated problem of how to deal with the rising volume of cases coming before a court and what priority to give to new and existing ones.
The Court has offered certain guidelines in the previously mentioned Union Alimentaria Sanders SA case: "In such circumstances it is legitimate as a temporary expedient to decide on a particular order in which cases will be dealt with, based on their urgency and importance. The urgency of a case, however, increases with time; consequently, if the critical situation persists, such expedients are shown to be insufficient and the State must take other, more effective action to comply with the requirements of Article 6 para. 1".
§ Origin of delays: complete inaction by the judicial authorities
Unless the national authorities can offer an explanation63, the Court always finds inactivity, in the form of absence of any procedural measures over a given period, unacceptable. In a Portuguese case (French only), the Court was unable to accept a period of total inactivity lasting 4 years and 11 months between the conciliation attempt and the preparatory decision64.
The Piron v. France case65, revealed numerous periods of inactivity in an agricultural land consolidation case in which the allocation of parcels was challenged by the applicants. These occurred in the Department land reorganisation and consolidation committee, which handed down its decision 6.5 years after the administrative court judgment, and in the administrative courts themselves, particularly the Conseil d'Etat, which gave judgment 4 years after the case was referred to it.
In a Greek criminal case66 lasting nearly 8 years that went to appeal, the Court noted several periods of inactivity attributable to the national authorities. "The Court notes that there were several periods of inactivity in the appeal proceedings before the Salonika Criminal Court of Appeal. After the applicant had filed an appeal on 18 February 1988 the case lay dormant for over 1 year and 7 months until it was listed for the first hearing on 6 October 1989. Furthermore, after 6 October 1989, the case was relisted on four occasions: 19 April 1991, 8 February 1993, 5 December 1994 and 12 February 1996."
In the Lavents v. Latvia judgment (French only), the Court criticised the period of 10 years and 28 days that elapsed between the standing down of one set of judges and the case's resumption before a new bench.
In the Santilli judgment of 19 February 1991, the Court found that proceedings lasting nearly 6 years and 9 months violated Article 6§1 and criticised the lower court, which "allowed periods to elapse that were too long and was totally inactive for nearly two years (23 June 1982 - 20 June 1984)."
The case Delic v. Croatia67 reveals dysfunctions of this type on the occasion of several civil disputes initiated by the applicant against various defendants. The Court underlines periods of inertia in each authority: 2 years and 10 months for one, 2.5 years for the other, more than 1 year for a third, 1 year and 6 months for the fourth.
§ Origin of delays: court inactivity and the rules of evidence
Inactivity, whether absolute or relative (for example, when audiences are spaced too far apart), often has consequences for the need to provide evidence. Parties may need to constantly update factual or financial information necessary to progress their case.
The Kubiznakova v. Czech Republic judgment of 21 June 2005 (French only) is a particularly good example. The case concerned the exercise of parental authority prior to a divorce, and the slow pace of the proceedings meant that the parties were repeatedly forced to update the information on their incomes, which in turn led to challenges from the other party.
§ Origin of the delay: systemic deficiencies in the rules of procedure
The Court sometimes identified causes of delay intrinsically related to the national legislation and implying major reforms. This situation is characteristic of certain States of the East like Poland, Slovenia, Croatia, Ukraine, Hungary, Bulgaria where the procedural rules allowed the ceaseless re-examination of the same cases: in the judgement Wierciszewska v. Poland, of November 25, 2003, the European Court underlines this dysfunction in these terms: “The delay was caused mainly by the re-examination of the case. Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system”.68
Judgement Horvat v. Croatia of July 26, 2001; or Preloznik and other v. Slovak Republic.
Implementation of National reforms:
The measurements taken by the States concerned to cure it appear in a public document: “List of Measurements of general character adopted in order to prevent new violations of the European Convention of the Human rights. Measurements communicated to the Committee of Ministers during his control of the execution of the judgements and the decisions under the terms of Convention (Application of old articles 32 and 54 and article 46)” updated at May 200669.
Thus, in Croatia, the reform of the rules of civil procedure in 2003, related in particular to this problem70.
§ Origin of delays: Difficulties arising from the existence of administrative and judicial courts
Two sets of courts exist in a number of countries - Greece, France, Belgium and Austria for example – and are an integral part of their judicial cultures.
This may sometimes lead to delays. If proceedings are under way simultaneously in both systems applicants may be unsure about which courts have jurisdiction or there may be a stay of proceedings.
The Nouhaud v. France judgment (French only) offers a clear illustration of the problems caused by this sort of arrangement, in connection with a compulsory admission to psychiatric hospital, which comes within the scope of both the administrative court (lawfulness of the prefectoral order) and the regional judicial court (appropriateness of the detention order). This overlapping jurisdiction led to a stay of proceedings in the judicial court pending a decision of the administrative court, where proceedings lasted 3.5 years in the Conseil d’Etat alone, a time that the Court considered to be excessive.
In the Obermeir case71, the interaction between administrative and judicial proceedings relating to the dismissal of disabled persons was the main cause of delays.
2°) Delays occurring at the beginning and during the procedure
§ Origin of the delay: the granting or the late refusal of a request for legal aid
In order to ensure the respect of the rights of defence, the request for legal aid which allows the designation of a lawyer and sometimes conditions the continuation of the authority by the applicant concerned, often delays the fixing of the first court session.
In the case Mangulade Pinto v. France of April 9, 2002, the CEDH criticized the length of the proceeding of a seven months period between on April 17, 1997, date of the request for legal aid formed by the applicant in order to prepare the appeal in cassation, and on November 26, 1997, date on which the office of legal aid refused its application.
§ Origin of delays: failure to summon parties, witnesses or defendants or unlawful summons
This is usually a problem connected with court registries when they have the monopoly of summons, but also to maladjusted rules of procedures.
In the Djangozov v. Bulgaria judgment of 8 July 2004, the Court noted that that two hearings had been adjourned because the defendants had not been properly summoned (§39).
The Court subscribes to the argument of the applicant according to whom the court failed in its obligation to ensure the appearance of the witnesses in the Volf case72, which led to repeated adjournments of the court sessions;
In Croatia, the 2003 reform of civil proceedings has modified the rules relating to such summonses to avoid delays.( Articles 66-79 of the Act of 14 July 2003)73
In Sweden, in order to improve the delivery of the convocations to the court sessions, the national authorities called upon the private companies, whose services are remunerated only if the convocations are delivered successfully74.
§ Origin of the delay: the time of designation of an instructing judge
This type of delay is more serious when a case proceeds in front of several successive authorities and when designations are, with each stage, the occasion of an additional delay.
The judgement Martial Lemoine v. France of April 29, 2003 relates to a dispute of the joint ownership which, for four tiers of courts, lasted 7 years and 8 months; being the activity of the courts, the European judges appoint only one period for which they raise an unjustified and exclusively ascribable delay in their eyes with the internal authorities: the eight month deadline during which the Supreme court of appeal was too long in appointing an legal adviser.
§ Origin of delays: late entry into force of essential implementing regulations
The Court has criticised such delays, which can seriously disadvantage parties to proceedings. An obligation for administrative authorities to issue the necessary implementing regulations for the enforcement of laws within a “reasonable time” could be proposed75.
In the Vallée v. France judgment of 26 April 1994, where exceptional diligence was required in view of the state of health of the applicants, who were HIV infected, 1.5 year elapsed between publication of the Act of 31 December 1991 providing for compensation for victims of contaminated blood transfusions and that of the implementing decree of 12 July 1993
§ Origin of delays: late transmission of the case file by the lower court to the court of appeal
This problem reflects malfunctioning both in the organisation of court registries and in the transmission of files.
The Martins Moreira v. Portugal judgment offers a civil law illustration: "after the applicant had lodged an appeal on 13 October 1982, the registry of the Evora court waited until 23 June 1983 to transmit the file to the registry of the appeal court. In the intervening period, it merely verified that various pleadings were included in the file and drew up a statement of the costs and expenses relating to the first instance proceedings".
Such delays can also affect criminal proceedings and appeals on points of law, as shown by the Bunkate v. Netherlands judgment of 26 May 1993, in which the Court criticised the fifteen and a half months that elapsed between the applicant's appeal on points of law and the arrival of his case file in the Supreme Court (§22).
§ Origin of the delay: the behaviour of the other actors of the lawsuit:
- lawyers: it can be a question of a strike of the lawyers causing a delay in fixing the schedule for court sessions, as in the Calvelli case and Ciglio v. Italy of January 17, 200276: the State must limit the effects on the functioning of the courts. The defect of diligence of a lawyer in his role of representation of one of the parties causes also delay, as in the case Intiba v. Turkey of May 24, 2005 when the Court observes that the applicant and his lawyers largely contributed to the prolongation of the procedure. (nearly 1 year of delay is ascribable to them). Sometimes, the applicant by challenging several lawyers successively, takes part in the delay: judgement Klamecki v. Poland of March 28, 2002.
- notaries77: In this case, the Paris interdepartmental chamber of the notaries appointed a new notary on October 3, 1996, that is to say nearly 5 years after the judgement of December 17, 1991. “As for the absence of diligence of this notary, it was in particular underlined by the revivals of the receiver” underlines the CEDH (§ 41 and 42).
- non official public bodies: The municipalities (the Council of a County in the judgement H v. the United Kingdom of July 8, 1987), or other public organizations as the municipal social services (social office of Helsinki)78 engage the responsibility for the State if they do not act with necessary diligence when they are asked for an opinion or intervene within the framework of legal procedures. But it returns to the courts concerned to respect the appropriate delays.
The behaviour of the social security is in question in the case Robins v. the United Kingdom of September 23, 1987: “the Court recalls moreover than, when they ask opinions other authorities, the courts remain responsible for the respect of the deadlines”.
§ Origin of delays: reform of the legislation during the proceedings
Reform of civil or criminal procedure when cases are already under way can lead to jurisdiction being transferred from one court to another, with time then being needed to transmit files and procedural documentation and appoint new judges, who must then familiarise themselves with the relevant cases before arranging hearings.
The Krastanov v. Bulgaria judgment of 30 September 2004 offers a good illustration. As the Supreme Court of Cassation no longer had jurisdiction following the reform of the civil procedure code, the Supreme Court forwarded the appeals to a newly created court of appeal. On 28 October 1997 the case was referred to the Supreme Court, the new civil procedure code came into force on 1 April 1998 and appeals were then referred to the new appeals courts, proceedings resumed in the new appeals court on 9 July 1998 and hearings took place between October 1998 and April 1999, culminating in an appeal court judgment on 5 May 1999, that is 1 year and 7 months after the original referral to the Supreme Court.
In an Italian case79, the procedure governing labour court disputes was introduced while the case was under way. This gave jurisdiction to the magistrate's court at first instance and the district court on appeal, but did not apply to current cases. However, the new legislation resulted in an almost four-year suspension of the proceedings before the first investigating judge.
§ Origin of delays: provisions in rules of civil or criminal procedure that can be used to impede or delay proceedings, with no safeguards
It has been possible for parties to use certain provisions of civil or criminal procedure to delay proceedings, as in the case of the former Italian system in which proceedings were automatically suspended when a party challenged a civil court's jurisdiction and which allowed parties in criminal cases to present fresh evidence throughout the proceedings, with no system of time limits.
In France, following a report in 2004 to the Minister of Justice80, a decree No 2055-1078 of 28 December 2005 relating to the civil procedure81, certain procedures of execution and the procedure of renaming envisages in article 23, a “fixed timetable” is issued by the judge, in agreement with lawyers of the parties, and in these terms: “The timetable comprises the foreseeable number and the date of the exchanges of conclusions, the closing date, that of the debates and, notwithstanding the first and second subparagraphs of article 450, that of the pronounced decision. (…) The time allowed in the timetable cannot be extended that in the event of serious and duly justified cause”.
As underlines it Mrs. Professor Fricero, “the determination of a timetable becomes the guard of the reasonable time of the lawsuit, in close cooperation with the litigants82”
§ Origin of delays: problems relating to expert witnesses
The delays related to the intervention of one or more experts in the procedure are very common in the civil, criminal and administrative proceedings and correspond to various situations:
§ Origin of delays: delays in appointing experts owing to judicial inertia
Although in Denmark parties may propose the appointment of experts, under the Administration of Justice Act courts are not obliged to agree to them. In the aforementioned A. and others v. Denmark judgment, the Court criticised the Danish court for allowing the parties to negotiate for almost two years on who should be appointed as experts and what questions to ask, without ever intervening (§80).
§ Origin of delays: experts who fail to comply with their mandate
Such situations create difficulties and delays and lead to requests for second opinions. The Court has constantly to emphasise that although experts have full autonomy in drawing up their reports, they are still subject to the supervision of the court, which must ensure that expert appraisals are properly conducted.
In the Versini v. France judgment of 10 July 2001 (French only), the Court found that the expert had exceeded his terms of reference, which were simply to assess the damage suffered. This had led to the applicant's requesting second opinions, thus prolonging the proceedings.
§ Origin of delays: the time granted by the court to the expert may not be extended to an exaggerated degree
The judge must make respect the times of handing-over of the expert report, the European Court does not cease repeating it.
In the Pena v. Portugal judgment of 18 December 2003 (French only), the Court pointed out that the expert's appraisal formed part of the judicial proceedings under the supervision of the court, which retained responsibility for the expeditious conduct of the case. This related to a case in which a state scientific laboratory had been required to submit its report within 60 days, that is on 19 November 1996, but had not done so until 15 May 2000, after the civil court had granted numerous extensions83.
In a Greek case, the court of appeal ordered an expert report on 15 February 1994, but only appointed the expert on 16 September 1994. After a hearing on 21 March 1995, it decided to re-examine the case and recall the expert for further explanations, but the hearing only took place on 8 April 1997. Judgment was handed down on 28 July 1997, but not published until 22 May 199884.
The Capuano case, concerning an easement, is another good example of problems arising from expert reports. On 14 March 1978 the court gave its appointed expert sixty days to submit his report but after numerous delays this only appeared on 5 July 1979, to be followed immediately by a request from one of the parties for a private expert report.
§ Origin of delays: failure to penalise experts for lack of diligence
Moreover, it is the passive role of the judges which is criticized by the European Court. The Court underlines “that the expert works within the framework of a judicial body controlled by a judge on whom fall the setting of a timetable and a rapid court proceeding”85.
An extract from the Zappia v. Italy judgment of 29 August 1996 (23 years of proceedings in a simple and still pending case of contractual liability and execution of judgment) illustrates the sequence of adjournments that can occur in length of proceedings cases: "On 27 March 1985, after an adjournment ordered by the court of its own motion, the judge appointed an expert, who was sworn in on 25 September 1985. The hearings listed for 26 February and 25 June 1986 had to be adjourned, as the expert had not filed his report within the sixty days he had been given. The hearing set down for 26 November 1986 could not take place because the judge had been transferred." As the Court noted, "an expert works in the context of judicial proceedings supervised by a judge, who remains responsible for the preparation and the speedy conduct of the trial".
In another case, the Court had this to say about a court's lack of initiative: "The Court observes that the two reminders to the expert issued by the judge preparing the case for trial - the first of which, moreover, came more than five months after expiry of the one-month limit given on 4 July 1980 .... did not have the desired effect and that the expert should therefore have been replaced." Di Pede v. Italy judgment of 26 September 1996 (civil procedure).
The Court stigmatizes the behaviour with the court in a case where the applicant successfully requested new opinions of an expert: it underlines « the domestic court did not have to grant additional expert opinion every time the applicant had requested it; the court itself has the authority to decide how to conduct the proceedings, and in particular, which evidence to take »(§ 30).86 The Court estimates that the delay taken during the period between November 20, 2001 and May 7, 2003 concerns the shared responsibility for the applicant and the court.
§ Origin of delays: difficulties in obtaining medical reports (criminal procedure)
These are cases in which forensic medical establishments that are normally responsible for carrying out medical examinations in legal proceedings are unable to supply an expert within the time laid down (Martins Moreira v. Portugal judgment of 26 October 1988)
Reforms were brought to the forensic medicine institutes to make of them auxiliaries adapted to an effective administration of justice. Following the Order in Council n° 169/83 of April 30, 1983 and ministerial decree n° 316/87 of April 16, 1987, they were equipped with essential human and material resources. Moreover, pursuing to the Order in Council n° 387-C/87 of December 29, 1987, the reforms were carried out on the level of the organization of the institutes in order to make them ready to answer quickly the requests which are presented to them87.
§ Origin of delays: numerous adjournments of hearings, either of the court's own motion or at the parties' request, and excessive intervals between hearings
Such delays reflect civil courts' failure to control the proceedings.
In the Baraona judgment88, the Court said although domestic legislation allowed state counsel to seek an extension of time the state might still be held responsible for any resultant delays.
In the Vaz Da Silva Girao v. Portugal judgment of 21 March 2002 (§12) (French only) the Court found adjournment of hearings. In the Martins Moreira v. Portugal judgment of 26 October 1988, the Court noted that although Article 264 of the Portuguese Code of Civil Procedure made parties responsible for taking the initiative with regard to the progress of proceedings, Article 266 required courts to take all appropriate steps to remove obstacles to the rapid conduct of cases. It also drew attention to Article 68 of the Road Traffic Code, which required the applicant's case to be heard under the summary procedure, which in turn involved a reduction in certain time limits.
In a dispute between the applicant and a health insurance office, the Court criticised the court of appeal for not hearing the case sooner: "in the Rouen Court of Appeal, the case was adjourned to a second hearing that was held nearly eleven months after the first .... although, whatever the reason for this adjournment, none of the evidence in the case file justified such a delay"89.
In the A. and others v. Denmark judgment of 8 February 1996, the Court stated that "the applicants contributed significantly to the length of the proceedings. It is also mindful of the fact that the proceedings in issue were not inquisitorial but were subject to the principle that it was for the parties to take the initiative with regard to their progress". However, it also criticised the High Court, before which the case had already been pending for approximately 2 years, for granting all of the parties' numerous requests for adjournments, "hardly ever using its powers to require them to specify their claims, clarify their arguments, adduce relevant evidence or decide on who should be appointed as experts" (§80). Yet in Denmark, it is for the court to decide when to close the preliminary oral or written stage of the proceedings, intended to establish the facts and the legal issues of the case, to ensure that the case is elucidated in the best possible way and to identify the subject-matter of the dispute. Once the preparation of the case has been completed the parties may not make new submissions or adduce new evidence unless they satisfy certain restrictive conditions.
In a recent case, the Court regretted that” more than 2 years between the second and third hearings held by the municipal court”90
Adjournments of hearings were held to be even more detrimental in a case where a procedural objection that had been presented 3 years earlier was finally accepted by the court, thus nullifying all the preceding stages of the proceedings (Ferreira Alves v. Portugal (n°2) judgment of 4 December 2003).
§ Origin of delays: judicial errors of law
"An error of law made by a judge can lead to an appeal and thus extend the length of proceedings. If this in itself were to give rise to a violation of the right to a hearing "within a reasonable time"91, that would be tantamount to acknowledging that there is a right to court decisions free of error." The Court is not totally convinced by this argument and considers that an error imputable to a court might justify a violation finding, but only in combination with other factors.
3°) Delays occurring after the procedure
§ Origin of delays: excessive lapse of time between the handing down of judgment and its notification to the court registry or to the parties
In certain countries, several months may elapse between the handing down of judgment and its notification to the party responsible for executing it. The problem often lies in the court registry or the inadequacy of its information technology facilities, while sometimes judgments are not notified because of a shortage of court officials.
Close attention therefore needs to be paid to the role of such court official in considering the causes of delays.
"Finally, it is difficult to understand why the judgment was not notified in writing to the parties until two months after its delivery" (Buchholz v. Germany judgment of 6 May 1981).
In France, "contracts of objectives" have been agreed in certain pilot appeal courts (some administrative appeal courts). In exchange for additional staff and other resources, they undertake to make significant reductions in the time taken to hand down and implement judgments.92
In Austria, information technology is being introduced to manage the flow of cases and monitor their progress93.
C. CAUSES OF DELAY BY TYPES OF PROCEEDINGS
1°) Civil proceedings
Courts' failure to use the powers or discretion granted by the rules of procedure
§ Origin of delays: Judicial inertia in producing evidence
These are cases where the civil courts are insufficiently active when the rules of procedure allow them to be.
In the aforementioned Kubiznakova judgment (French only), the Court accepted the applicant's argument that the reason she had had to present evidence, often repeatedly, was because the court had failed in its obligation to secure evidence of its own motion, as it was required to do in this type of case.
§ Origin of delays: Failure of courts to check that summonses to appear are properly drawn up, when the code of civil procedure places this responsibility on them.
The Capuano v. Italy judgment of 11 November 1994 offers one of many examples. Reference may also be made to the Serrentino v. Italy judgment of 27 February 1992, §18 and, mutatis mutandis, the Cifola judgment of 27 February 1992, § 16.
§ Origin of delays: Cases where civil procedure prevents the examination of new grounds on appeal
The fact that civil procedure prevents the examination of new grounds on appeal, which means that lower courts must show special vigilance, cannot justify excessive length of proceedings at first instance.
In the Lechner and Hess case94, the Government relied on the fact that civil proceedings in Austria were founded on the principle that new matters could not be raised on appeal (Neuerungsverbot) to justify granting the trial court extra time to reach a decision, since the higher court was restricted to reviewing the impugned decision on the basis of the material before the court below. The judgment stated: "Without minimising the relevance of this factor, the Court does not believe it to be of such weight as to absolve the lower court from having to comply with the requirements of Article 6 para. 1 (art. 6-1) regarding the conduct and expeditiousness of trial."
§ Origin of delays: Civil procedure does not allow courts to rectify parties' failure to conduct proceedings at a reasonable rate
In connection with accusatorial proceedings, the Court often states that although under the civil proceedings code in question it is for the parties to take the initiative with regard to progress, this does not absolve the courts from ensuring compliance with the requirement of Article 6 concerning reasonable time
The above comment occurs in the following judgments: Capuano v. Italy of 25 June 1987, §§ 24 and 25 , Martins Moreira v. Portugal of 26 October 1988, § 46, Vernillo v. France of 20 February 1991, and Proszak v. Poland of 16 December 1997.
More recently, in the Tsirikakis v. Greece judgment of 17 January 2002 (French only)95, the Court found that even though the proceedings were governed by the initiative of the parties principle, the reasonable time requirement also required courts to scrutinise the conduct of the proceedings and exercise great care in granting adjournments or requests to hear witnesses and ensuring that necessary expert reports were submitted on time.
It has emerged from several cases that domestic law does not give courts power to intervene to expedite proceedings. According to the Füterrer v. Croatia judgment of 20 December 2001, "the Government point out that in the civil proceedings the courts are limited in their activity as they may not take procedural steps on their own initiative but mostly according to the requests of the parties."
In certain cases, the Court implicitly invites national authorities to amend their legislation to offer courts the necessary powers to order recalcitrant parties to expedite proceedings. "As to the Government's contention that the first-instance court was impeded in progressing with the proceedings because the defendant did not comply with the court's orders to attend the hearings and the DNA tests, the Court reiterates that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time"96.
For this reason, it is advisable to note, the Danish practice of the schedule for the court sessions: this practice appeared obviously effective in several cases submitted to the Court which did not note any idle period in the litigations and allowed him to show a non violation.
The Ciricosta and Viola v. Italy judgment of 4 December 1995 (§30) noted that the "principio dispositivo", to which civil proceedings in Italy were subject, made the parties responsible for taking the initiative with regard to the progress of the proceedings. It criticised the parties' abuse of this facility and added that it did not dispense the courts from ensuring compliance with the requirements of Article 6.
Certain states that use the inquisitorial approach have reformed their civil procedures after Court findings of excessive length of proceedings. For example, in legislation that came into force on 1 January 2002, Slovakia replaced the inquisitorial with the accusatory principle. The burden of proof now lies exclusively with the parties, who in principle can only adduce evidence and facts at first instance.97
The 1990 reform of Italian civil procedure, modified in 1995, aimed to improve the conduct of proceedings by introducing a system of time-limits, which required parties to present their evidence at the second hearing, and a new judicial body, in the form of justices of the peace, to enable full judges to concentrate on more important cases.
In 1973, the Italian authorities introduced a reform establishing a special procedure for employment and labour disputes, for which the Court requires particular diligence, while in 1990 it approved emergency measures to expedite the conduct of proceedings of this sort (see, most recently the Lestini v. Italy judgment of 26 February 1992, § 18).
Croatia reformed its civil procedure in legislation of 14 July 2003, which replaced inquisitorial with adversarial proceedings in civil cases. As a result, only the parties to the proceedings are required to establish the facts, and then only at first instance. It is therefore no longer possible to have court decisions quashed and cases referred back for re-examination because courts have failed to establish certain facts on their own initiative (articles 7 and 195). New pecuniary penalties were planned for the parts which misuse their procedural laws and thus cause unjustified delays in the procedures (articles 4, 56 and 84)98. Moreover, the possibility for the representative of the public prosecution of asking for the revision of final decisions of the court within the framework of an extraordinary procedure was repealed by article 239 of the law of July 14, 200399.
The Hungarian system has also changed. Judges are no longer required to instruct the parties about their rights; measures designed to delay proceedings may now be sanctioned; since 1995, evidence has had to be presented at the same time as requests; deadlines may only be extended once by the courts and never by more than 45 days; and alternative means of settling disputes, such as mediation and arbitration, have been introduced.
In his report "Access to Justice"100, Lord Woolf has criticised the often excessive length of civil proceedings in the United Kingdom and their disorganised nature. The overriding objectives of the 1999 reform of civil procedure that followed his report's proposals included the more rapid resolution of cases.
2°) Criminal proceedings
§ Origin of delays: structural problems relating to the organisation of the prosecution service
In certain cases, such organisational problems lead to an accumulation of delays and procedural errors.
In the Mitev v. Bulgaria judgment of 22 December 2004, the Court criticised the numerous referrals of the case back to the investigation stage over 2 years to correct procedural errors.
§ Origin of delays: periods of the investigation stage where little or no progress is made in the proceedings or in inquiries
The Court criticises inactivity, even in the investigation phase.
One of the problems is that of dormant cases, because no regular checks are carried out to identify cases no longer being dealt with actively by investigating judges.
In the Nuvoli v. Italy judgment of 16 May 2002 (French only), the Court found that more than 1 year and 5 months elapsed after the search of the applicant's premises before an application was made to bring the case to court.
In the Mutimura v. France judgment of 8 June 2004 (French only), the Court acknowledged that the case was slightly complex but still criticised the dilatory nature of the investigation and the fact that international requests for judicial assistance were issued more than 5 years after the state prosecutor's initial indictment. It found that there had been a violation of Article 6§1 in a case whose investigation had lasted 9 years and was still under way when the Court delivered its judgment. The case concerned criminal complaints alleging that a Rwandan clergyman residing in France had taken part in acts of genocide in Rwanda
Several countries have introduced deadlines to expedite criminal proceedings.
The new Italian code of criminal procedure that came into force on 24 October 1989 established deadlines for prosecutors or investigating judges and provided for more rapid criminal proceedings. Direct judgments are used for cases where the offender was apprehended in the act and immediate judgments where the prosecuting authorities consider the evidence to be irrefutable.
Similarly, on 28 April 2003 Spain introduced rapid criminal proceedings with limited deadlines for various stages: 72 hours each for the judicial police inquiries and for the duty investigating judge to investigate the case and start the oral proceedings, with the prosecuting authorities presenting their indictment as soon as the oral stage has started. The aim is to secure a verdict no later than one and a half months after the suspect's arrest, particularly in cases, such as marital violence and burglary, with a high social impact.
In Germany, accelerated proceedings are used for cases carrying a sentence of no more than one year's imprisonment. Hearings must take place no more than six weeks after the prosecuting authorities have requested the relevant court to order the accelerated procedure.
Since its 1998 reform of the criminal procedure code, Portugal has operated an abridged procedure similar to the accelerated one in Germany.
In France, 75% of cases, compared with 45% ten years ago, are subject to rapid referral to the criminal court, either by the investigating judge or by direct summons, without a preliminary investigation. These developments have helped to expedite proceedings, with 75% of persons concerned now appearing before the courts within a period of two days to four months101.
§ Origin of delays: too long a period before or between hearings
The state is responsible for delays in hearing cases once the investigations are complete.
In the Mattoccia case102, 3 years and 7 months elapsed between the applicant's committal for trial and the first hearing before the trial court.
The Court also criticised the fact that more than a year passed between the lodging of the appeal and the first hearing in the appeal court in the Hamanov v. Bulgaria and Belchev v. Bulgaria judgments of 8 April 2004.
On the other hand, in a Polish case that lasted 5 years and 8 months, the Court's non-violation finding can be explained not only by the complexity of this international drug smuggling case but also by the numerous steps taken by the court to expedite proceedings103.
In particular, it noted the court's refusal to grant a motion lodged by one of the accused at the first hearing to have the case returned to the prosecution to allow investigations to be completed, the decision to separate consideration of the applicant's case from that of two absent co-accused and several refusals of requests by the applicant that would have extended the proceedings. Although several hearings were adjourned, these were imputable to the accused or to absent witnesses. None could be imputed to the court's failure to expedite the proceedings104.
§ Origin of delays: whether or not to join criminal cases
The Court sometimes has to rule on courts' decisions on whether to join related cases, particularly complex criminal cases with several co-accuseds. It has to decide whether such decisions are consistent with the reasonable time requirement, while also bearing in mind the importance of the proper administration of justice, which may require an alternative approach.
In the Wejrup v. Denmark decision 7 March 2002105, which concerned international fraud and misleading accounting, the applicant maintained that the proceedings were unnecessarily prolonged due to the consolidation of his trial with that of the co-accused, and that various considerations did not concern him. However, the Court approved the prosecution’s decision to join the cases against the defendants, the aim being to reduce court costs, and described it as "undoubtedly appropriate".
However, it has to strike a balance between separating proceedings in the interests of speed and the proper administration of justice. In the case of Absandze v. Georgia of 15 October 2002 (inadmissibility decision – French only), the Court made it clear that separating the applicant's case from that of the other accused would have probably expedited the proceedings but that there was nothing to indicate that such a separation would have been compatible with the proper administration of justice106.
§ Origin of delays: Failure of witnesses to attend hearings, causing repeated adjournments
Regarding the importance of evidences in criminal proceedings, delays linked to failure of witnesses or their repeated failures is source of worrying delay.
When national criminal codes authorise courts to fine witnesses who have been duly summoned and then fail to attend without good cause, or even to have them brought in by the police, the Court criticises courts that fail to use these powers to expedite proceedings.
In the Iłowiecki v. Poland judgment of 4 October 2001, concerning international criminal fraud, the Court criticised the adjournment of hearings over a period of a year because witnesses were not present. The proceedings had lasted 7 years, 10 months and 7 days and were still pending when the Court ruled. Of this period, 2 years and 10 months were imputable to the authorities, which were in violation of Article 6§1.
Reference should also be made to the Trzaska v. Poland judgment of 11 July 2000, § 90, and the Kusmierek v. Poland judgment of 21 December 2004, in which the Court found Poland to be in breach of the Convention in a defamation case that had lasted 9 years and 6 months (of which only 8 years and four months came within the Court's temporal jurisdiction). In the Kuibichev v. Bulgaria judgment of 30 September 2004, the Court raises the issue of the ascribable delays to the Bulgarian courts, in particular those holding with the absence of the witnesses and the insufficiency of the measurements taken by the authorities to ensure itself of their presence at the court session.
§ Origin of delays: effects of delays in criminal proceedings on civil proceedings
When criminal proceedings drag on, this can also prevent or hinder progress in the civil courts.
In the Motta judgment of 12 February 1991, where a civil dispute between a doctor and the social security authorities led to criminal proceedings against the applicant for fraud, the Court found that the criminal proceedings had been too slow and added that "the civil proceedings were prevented from pursuing their course by the slowness of the criminal proceedings".
The Djangozov v. Bulgaria judgment of 8 July 2004 offers a more recent illustration.
3°) Administrative proceedings
§ Origin of delays: delays attributable to non-judicial authorities
Delays caused by the conduct of ministers or their representatives or public health establishments, in cases that must first be referred to the relevant authorities, are imputable to the contracting state. In the Schouten and Meldrum v. Netherlands case of 9 December 1994, the applicant had had to wait twenty months for a decision from a professional association before he could lodge an appeal.
The French cases concerning haemophiliacs contaminated by the HIV virus during blood transfusions offer a good illustration of this problem. In the Vallée case of 12 December 1989, the applicant submitted a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection, in accordance with Article R.102 of the Administrative Courts and Administrative Courts of Appeal Code. On 30 March 1990, shortly before the expiry of the statutory four-month time-limit, the Director-General for Health rejected the applicant's claim. In the more recent Kritt case107, the Court criticised the Paris public hospitals authority (AP-HP), stating that when a public law institution was party to proceedings, delays resulting from its conduct were imputable to the "authorities" as defined in established case-law. This had therefore been the case with the delays imputable to the AP-HP. Rather than explicitly rejecting the applicants' preliminary claim, the AP-HP had remained silent, which meant that they had had to wait four months before they could apply to the administrative court. The AP-HP had also taken six months to submit its observations to the administrative court. The Court also criticised the administrative court's conduct. It had waited until 16 February 1999 before issuing directions to the AP-HP, and the court-appointed expert had taken eleven months to produce his report.
In a Spanish case, the Court observed that the Audiencia Nacional had had to ask the authorities several times to send the relevant files, thus showing a lack of diligence on the latter's part. It had only supplied the documentation 4 years and 6 months after the first request108.
In the Clinique Mozart SARL case109, the tax authorities were deemed to be responsible for a 2 year and 9 month' delay in the proceedings because of the late submission of their defence pleadings.
In disputes concerning social security contributions where a professional association does not reach a decision in a reasonable time or refuses to do so, the Netherlands general administrative code that came into force on 1 January 1994 authorises citizens to lodge an immediate appeal directly with the court.
II. DOMESTIC REMEDIES TO REDUCE LENGTH OF PROCEEDINGS AND OVERVIEW OF RELEVANT PROCEEDINGS110
A. Directives of the European Court
At its 114th session in May 2004, the Council of Europe adopted a Declaration on "Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels".
At the Committee of Ministers' request, the Steering Committee for Human Rights (CDDH) is looking at ways of implementing the Committee's recommendations, including the one on improving domestic remedies, via its Committee of Experts for the Improvement of Procedures for the Protection of Human Rights111.
Measures to reduce length of proceedings are an important aspect of this activity.
When it was drawing up Recommendation Rec (2004) 6, the CDDH asked national authorities for examples of good practices designed to improve domestic remedies.
Following the aforementioned Kudla judgment, several states have introduced arrangements to enable citizens who have suffered excessively lengthy proceedings or who are still awaiting completion of a particular stage to have their case expedited. It is gradually becoming clear that the alternative offered by the European Court of Human Rights itself has a number of disadvantages. By allowing countries to choose between compensation for damage suffered from over-lengthy proceedings and the possibility of expediting proceedings, the Court has created the possibility of new remedies.
Indeed, like the application of the Pinto law already expressed, the damages granted to the plaintiff, to fulfil the requirements of the European Court, made this remedy “extreme attractive”112 and currently generate an overload of the Italian Courts of Appeal, without a prevention of unreasonable timeframes in the future.
In the important judgement Scordino v. Italy113, the CEDH refers to work of the CEPEJ: “In its framework programme (CEPEJ (2004) 19 Rev 2 § 7) the CEPEJ noticed that “the devices limited to a compensation have a too weak inciting effect on the States to lead them to modify their functioning and bring only one repair a posteriori in the event of a proven violation instead of finding a solution for lengthy court proceedings”.
It continues in these terms: “When a legal system is failing in this respect, a remedy making it possible to accelerate the procedure in order to prevent an excessive duration constitutes the most effective solution. Such remedy introduces an undeniable advantage compared to a remedy only focussing on the payment of a financial compensation because it also avoids having to note successive violations for the same procedure and, like a remedy of financial compensation, is not limited to act only a posteriori, such as that envisaged by the Italian law for example”.
B. Existing domestic remedies: summary114
A number of interesting domestic remedies are currently available.
In Austria, Section 91 of the Courts Act (Gerichtsorganisationsgesetz) offers a remedy that the Court recently described as "effective" in the Holzinger judgment of 30 January 2001. New provisions were introduced in March 2004 into the criminal procedure code, granting accused persons the right to have their proceedings terminated within a reasonable time.
In Belgium, the Act of 30 June 2000 introduced a new Article 21 c into the code of criminal procedure authorising courts to convict persons with a simple declaration of guilt (that is, with no further penalty) or impose a sentence below the statutory minimum, if the proceedings have lasted beyond a reasonable time. 115
The Czech Republic has instituted reforms following the Hartman judgment of 10 July 2003, in which the European Court found that appeals to the Constitutional Court, which enabled individuals to challenge any final decision of another body, be it administrative or judicial, were not effective. Act No. 192/2003 has added a provision to Act No. 6/2002 on courts and judges under which, from 1 July 2004, it has been possible to seek a remedy for excessive delays in judicial proceedings by applying for a deadline to be set for completion of a particular procedural stage or formality. This procedure is similar to the one in Austria described earlier.
Under Article 21 of the Finnish constitution, "Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice."
The code of criminal procedure also provides for a special selection procedure aimed at reducing the total length of proceedings in criminal and civil cases. Article 6.3 of the criminal code allows courts to reduce sentences when a particularly long period has elapsed since the offence was committed and when the normal penalty would have an unreasonable or exceptionally detrimental effect.
In Italy, the so-called Pinto Act, No. 89 of 24 March 2001, allows persons who have suffered detriment as a result of excessively lengthy proceedings to obtain just satisfaction. This remedy was considered to be effective in the Brusco case116, a pilot decision in which the European Court of Human Rights invited the applicants who had referred the case on the grounds of reasonable time to withdraw it or otherwise face the risk of an inadmissibility decision by a committee of judges.
In the subsequent Scordino case117, the Court found that excessively lengthy proceedings did not necessarily entitle those concerned to be granted adequate compensation by the Italian courts in accordance with the Court's criteria. Appeals to the Court of Cassation were not an effective remedy.
The case was referred to the Grand Chamber of the Court, which took its decision on 29 March 2006..
The judges of Strasbourg note that “by adopting the Pinto law, Italy brought a remedy purely focussing on financial compensation in the event of a violation of the principle of reasonable time”.
The Court takes good note of the reversal of decisions of the Italian Court of cassation intervened on November 27, 2003 and greets the efforts authorized by this jurisdiction to conform to European jurisprudence by indicating to the Italian courts that the compensation for the damage related to the excessive duration of a procedure should not move away from the amounts fixed by the European Court.
From July 26, 2004, it considered that the Pinto law constituted an effective remedy and that he must be required applicants for purposes of article 35 § 1 of Convention.
The CEDH, with the request express of the Slovak, Czech and Polish authorities, clarified its jurisprudence as regards the useful remedy, being the repair of an excessive length of proceedings indicates: “One cannot indeed exclude that the excessive slowness of the remedy does not affect the adequate character of it (Paulino Tomas v. Portugal (Dec.), n° 58698/00, Belinger v. Slovenia, (Dec.), n° 42320/98, October 2, 2001 and, mutatis-mutandis, Öneryıldız v. Turkey, n° 48939/99, § 156)”. It estimates “completely possible which the applicable rules of procedure are not exactly the same ones as those which apply to ordinary actions in repair and which the rules as regards costs of proceedings can be different and thus make it possible the plaintiff not to support excessive loads when its action is founded”.
It accepts that a State which obtained different remedies – preventive solutions and compensation schemes - whose judgements, in conformity with the legal tradition and the standard of living of the country are justified, and usually carried out with celerity, “grants sums which, while being lower than those fixed by the Court, are not unreasonable (Dubjakovav. v. Slovakia (Dec.), n° 67299/October 1, 2004). However, when the requirements enumerated above all were not respected by the internal remedy, it is possible that the amount from which the litigant will be able to be still claimed “victim” is higher. ” (§206)
Article 24 of the Spanish Constitution grants everyone the right to a public trial or hearing with no unjustified delays.
The recurso di amparo before the Constitutional Court offers plaintiffs two remedies for unreasonably lengthy proceedings, in which the pending proceedings are immediately set in train, either by an order to cease the period of inactivity or by setting aside the decision that is unjustifiably prolonging the proceedings.
Sections 292 ff of the Judicature Act authorises individuals, once proceedings are over, to apply to the Ministry of Justice for compensation for judicial malfunctioning.
According to the relevant case-law (Gonzalez Marín v. Spain (dec.) no 39521/98, ECHR 1999-VII), unreasonable lengthy proceedings constitute a malfunctioning of the judicial system. The minister's decision is liable to appeal to the administrative courts. The Court has also ruled on the effectiveness of the remedies in Sections 292 ff of the Judicature Act in connection with excessively lengthy proceedings in the Constitutional Court, in its admissibility decision of 28 January 2003 in the Caldas Ramirez de Arellano case.
In Croatia, following the judgment of the European Court in the above mentioned Horvat case, the constitutional law on the constitutional Court of 1999 was amended. New article 63, into force since March 15, 2002, is read as follows:
“1. The constitutional Court must examine a constitutional remedy even as all the legal remedies were not exhausted whenever a court of competent jurisdiction did not rule within a reasonable time on the rights and obligations of a person or on the cogency of penal a matter charge directed against it (...)
2. If the constitutional Court retains the constitutional remedy (...) envisaged by paragraph 1 of this article, it fixes the time in which a competent court of jurisdiction must rule on the bottom of the case (...)
3. In the decision returned under the terms of paragraph 2 of this article, the constitutional Court fixes the adequate amount of repair to be granted for the violation of the constitutional laws noted (...) the amount of repair must be paid on the budget of the State within three month from the date on which the part presented a request for payment.
The European Court noted on many occasions that this new provision constituted an effective remedy with regard to the excessive duration of legal procedures (see the Radoš case and others against Croatia (07/11/2002) and the decisions on the admissibility in the Slaviček case (decision of the 04/07/2002), Nogolica case (decision of the 05/09/2002), Plaftak and others (decision of the 03/10/2002), Jeftić case (decision of the 03/10/2002) and Sahini case (decision of the 11/10/2002)). The effectiveness of this new remedy was confirmed thereafter by the decisions of the constitutional Court and in particular through the direct effect granted to the judgments of the European Court in interpretation of the Croatian right. Under the terms of article 140 of the Croatian Constitution, the European Convention of the Human rights, ratified by Croatia on October 17, 1997, forms part of the internal legal order and its provisions take precedence over the provisions of the national legislation.
Following the legislative reform of 2002 above mentioned the judgments of the European Court were seen recognizing as a direct effect in the event of excessive duration of the legal procedures, including procedures of execution. The constitutional Court thus noted several violations of the right of the plaintiffs under the terms of article 29, paragraph 1, of the Constitution because of the excessive duration of the legal procedures. Consequently, it ordered with the courts concerned to return a decision within certain times and granted damages for the delays which had already taken place118.
The Slovakian constitution was amended with effect from 1 January 2002 to enable individuals and legal persons to challenge violations of their right to be heard or tried within a reasonable time. The Constitutional Court has also been empowered to order relevant authorities to settle cases immediately and to grant adequate financial compensation for excessively lengthy proceedings (Article 127, amended in 2002). The European Court has already noted on a number of occasions in connection with the Constitutional Court's practice that this new arrangement is an effective remedy for the purposes of Article 13 of the Convention (see the admissibility decisions in the Hody (06/05/2003), Paška (03/12/2002) and Andrášik and others (22/10/2002) cases)119.
In Germany the right to be tried or heard within a reasonable time is guaranteed by the Basic Law, and complaints of violations of this right can be brought before the Federal Constitutional Court, which is solely empowered to ask the court concerned to expedite or settle the proceedings. The Federal Constitutional Court is not competent to impose time-limits on lower courts or to order other measures to speed up proceedings, nor is it able to award compensation.
A bill to introduce a new remedy against inaction was tabled in advance of the parliamentary elections of 18 September 2005. According to the government, this will make it possible to reduce the Federal Constitutional Court's case-load, since complaints will henceforth be lodged with the court dealing with the case or, should that court refuse to take steps to expedite the proceedings, an appellate court.
The European Court held that "the Government, in opting for a preventive remedy, have taken the approach most in keeping with the spirit of the protection system set up by the Convention, since the new remedy will deal with the root cause of the length-of-proceedings problem and appears more likely to offer litigants adequate protection than compensatory remedies, which merely allow action to be taken a posteriori."120
III. THE RESEARCH OF THE REASONABLE TIME
From a reading and detailed analysis of numerous European Court of Human Rights judgments and Committee of Ministers resolutions, the following tendencies are apparent.
A. The main tendencies of the European Court regarding reasonable time:
The procedural phases of a case deemed to comply with the requirement of reasonable time generally last less than 2 years.
When this period lasts longer than 2 years but goes uncriticised by the European Court, it is nearly always the applicant's behaviour that is to blame and the delay is at least partly down to their inactivity or bad faith121. In 23 complex cases where there were rulings that no rights had been violated, it is striking to note that in twelve cases - over half - the applicant's conduct is criticised by the Court as having contributed to the delay. The finding of no violation is explained by the inappropriate conduct of the applicant.
Even if the applicant does not act with the required diligence, the Court always considers how the courts have responded: if the courts cannot be found at fault for any particular failure to act and if the case involves proceedings in which the parties bear responsibility in the conducting of the process, the parties will be held entirely to blame for the delays due to their failings and inappropriate demands and it will be ruled that there has been no violation, even if the length of proceedings seems excessive in objective terms.
For any proceedings lasting longer than 2 years, the ECHR examines the case in detail to check the diligence of both national authorities and the parties in the light of the case's complexity; for proceedings short of the two-year mark, the Court does not carry out this detailed examination.
What is at stake for the applicant in the dispute is a major criterion for assessment and may prompt the European Court to reconsider its usual practice of considering a period of less than 2 years as acceptable for any court instance122.
It may also be a reason for a court to prioritise this type of case in its schedule of hearings123. Given the backlogs in the courts, the European Court seeks to reconcile the concern with reasonable time with that of proper administration of justice; when considering the treatment to be given to pending cases, it therefore invites courts with a backlog to call cases by order of importance and no longer only on a first come first served basis; it implicitly suggests taking account of what is at stake for the applicant in the dispute124. Prioritising certain categories of cases has already been successfully tried by the courts of States in northern Europe125.
In complicated cases, the Court, bearing the complexity of the case in mind, focuses only on the lengths of proceedings that are manifestly excessive and demands precise explanations regarding these "abnormal" durations if it is to rule that there has been no violation126. But it is distinctly less strict in simple cases.
B. A few illustrations of "reasonable time":
1°) Simple civil cases:
For a civil case involving a dispute over co-ownership a total duration of 5 years and 3 months for three levels of instance breaking down as follows:
§ 1 year and 10 months at first instance
§ 1 year and 8 months on appeal
§ 1 year and 9 months on cassation, is judged to be reasonable (Martin Lemoine v. France judgment, 29 April 2003).
For a labour dispute: classified by the European Court as a priority case
The case is judged within a reasonable time, if dealt with:
§ at first instance for 1 year and 7 months,
§ on appeal for 1 year and 9 months
§ on cassation for 1 year and 9 months. (Guichon v. France judgment, 21 March 2000).
The conduct of the parties in this case was the focal point of criticism from the Court, which emphasised the delays both in the applicant's request for referral to the industrial relations tribunal and in his appeal, as well as the delay in the lodging of the parties' conclusions before the Court of cassation. Deduction of the delays attributable to the parties gives: 1 year and 1 month before the industrial relations tribunal and eleven months before the Court of cassation.
For another case involving a labour dispute, judged in 6 years and 3 months for four court instances (labour tribunal at 1st instance, labour appeal court, supreme court and constitutional court), the Court held that the following durations were reasonable:
§ 1 year and 6 months before the first instance judge, with regular hearings,
§ 4 months on cassation,
§ appeal lasting 1 year and 9 months.
But it attributed a delay of four months before the first judges to the applicant owing to their unjustified absence at a hearing. (Antolic v. Slovenia of 1 June 2006)
And while a similar type of labour dispute was judged more swiftly at 1st instance (5 months) and on appeal (1 year and 5 months), the Court tolerated a longer duration (of 2 years and 2 months) before the court of cassation (while considering the period rather long): its overall assessment of the case remained positive (Gergouil v. France judgment, 21 March 2000).
2°) Simple criminal cases:
For a banking fraud offence: a total duration of 3 years and 6 months for 3 instances breaking down as follows:
§ 6 months of investigation,
§ 1 year and 2 months at 1st instance
§ 11 months on appeal
§ 1 year and 5 months on cassation
was judged reasonable (Kuibichev v. Bulgaria judgment, 30 September 2004).
For offences involving illegal demonstrations and use of explosives causing death: a total duration of 5 years and 11 months for 4 instances breaking down as follows:
§ 1 year and 8 months before the State Security Court
§ 1 year and 7 months before the Court of cassation
§ 1 year and 2 months before the Security Court ruling on referral
§ 11 months before the Court of cassation
was judged reasonable (Soner Önder v. Turkey judgment of 12 July 2005)
3°) Complex cases
For a criminal case involving fraud and conspiracy: a total duration of 8 years and 5 months breaking down as follows:
Preparatory investigation of 4 years and 7 months: duration justified by the number of witnesses to be heard and documents to be examined.
Judgment by three court instances lasting 3 years and 10 months (Hozee v. Netherlands judgment, 22 May 1998) was judged reasonable.
For a criminal case involving negligent homicide: proceedings lasting 6 years and 3 months for four court instances could not be considered unreasonable; (Calvelli and Ciglio v. Italy judgment of 17 January 2002).
In the complex cases where a violation has been found, of the forty one cases judged between 1987 and 2004 and set out in appendix 3, a distinction should be drawn between the criminal cases and the others.127
Regarding the nineteen criminal procedures:
§ durations all of more than 5 years of proceedings for one to two court instances, with one exception: 2 years for one court instance.
§ six cases were still pending at the date of the ECHR judgment.
§ in seven cases, it was the inquiry and investigation phase that was criticised.
§ in four cases, the Court criticised the excessive intervals between hearings before the court of judgment or between first instance judgment and the first appeal hearing.
Regarding the eleven civil procedures:
§ durations ranging from 2 years and 3 months for the shortest and 19 years for the longest;
§ in five cases something was at stake for the applicant, therefore requiring special diligence in the eyes of the European Court;
§ in the shorter cases there is a requirement of special diligence linked to what is at stake for the applicant in the dispute.
In the complex cases where no violation has been found, among the twenty three cases studied, there are:
§ 16 criminal procedures
§ 6 civil procedures
§ 1 administrative procedure.
In these disputes, it is striking that in twelve cases - over half - the applicant's conduct is criticised by the Court as having contributed to the delay.
In the criminal cases, the longest duration is 8 years and 8 months for three court instances, in a French case involving international drug trafficking (Van Pelt v. France judgment of 23 May 2000): the Court noted that the 3 years of proceedings before the investigating judge had been punctuated by numerous investigative measures, and that the courts of judgment had taken decisions swiftly. The conduct of the applicant was not criticised.
In the civil cases, the longest duration was 6 years in a pending case: the Court found that the applicant had lodged one action after another, some of which had proved pointless and further complicated a case already considered “highly complex”. On the other hand, no period of inactivity could be attributed to the authorities.
In its "short survey of cases examined in 2004", the Court noted that "as in previous years, a large percentage of the judgments delivered by the Court concerned exclusively or primarily the excessive length of court proceedings. The number of these judgments was virtually identical to that for the previous year (increasing from 235 to 248), as was the figure shown as a percentage of all judgments (increasing from 33.43% to 34.49%)."
Addressing a conference to mark the fiftieth anniversary of the Convention, Mr Luzius Wildhaber, President of the European Court since the 1998 reform, described the challenges facing the European human rights protection machinery. In the coming years, he told his audience, the success of the Convention system would be judged according to three criteria: the length of proceedings before the Court, the standard of its judgments and the effectiveness with which those judgments were implemented. He called for contracting states to give that system their total support, which was essential if the Convention machinery was to be successful.
The length of judicial proceedings remains a major concern, not only for domestic courts everywhere but also and above all for the European Court.
In the 2005 report, the Court registered 219 judgments concerning the length of civil or administrative proceedings and 55 judgments concerning criminal proceedings. On a total of 1105 judgments, the reasonable time cases represent around a quarter of the decisions taken.128
The Court's judgments and decisions show that there is a clear need for a "culture of expedition or dispatch", which is not necessarily synonymous with speed but signifies above all a commitment to proper judicial time management.
This aim implies to mobilise all the parties to the trial, first of all the courts, and inside them, magistrates, clerks and administrative staff. Information technology offers now interesting tools facilitating the follow-up of proceedings and allowing a better watch of delays. Proposals are made for mobilising the different parties129. The “Best practice project” in Denmark should be mentioned, intending to increase the capacity of courts, while assuring constant quality of the judicial service.130
All those involved in the process need to be mobilised, starting with the courts, including judges, court registrars and administrative staff. But achieving this objective also requires the involvement of other legal professions such as lawyers, notaries, bailiffs and court appointed experts, all of whom have a contribution to make in their respective spheres.
Courts also function in co-operation with an increasing number of other institutions. The required "diligence" must concern all national authorities and the officials working for them, whether they are responsible for drafting defence submissions on behalf of governments or for responding to requests for out-of-court settlements. Other decentralised or devolved public bodies are equally concerned, when they become parties to certain proceedings concerned with guardianship or statutory care, for example, or are consulted by the courts in proceedings relating to social services or social security matters.