The Length of Proceedings in the Jurisdiction of the European Court of Human Rights
The length of proceedings in the jurisprudence of the European Court of Human Rights[1]
by Holger Hembach
Content
Summary
I) Introduction
II) Time period to be considered
1) Jurisdiction rationae temporis
2) Periods to be considered in different areas of law
a) Criminal proceedings
b) Civil proceedings
c) Administrative proceedings
III) Criteria
1) Complexity of the case
2) Conduct of the applicant
3) Conduct of the respondent state
4) Importance of the matter to the applicant
Summary:
Article 6 ECHR enshrines the right to a trial within reasonable time. The European Court of Human Rights determines whether the duration of proceedings in a case was reasonable considering all circumstances of the case. The assessment is carried out in two steps: First, the Court establishes the relevant time period to be considered for the purposes of article 6 ECHR; then, it assesses whether this duration was reasonable. For this assessment, the Court applies four criteria: The complexity of the matter, the conduct of the applicant, the conduct of the respondent state and the importance of the matter to the applicant.
I) Introduction
Article 6 paragraph 1 of the European Convention on Human Rights (ECHR) provides that everyone is entitled to a fair and public hearing within reasonable time in the determination of his civil rights and obligations and of any criminal charge against him. The right to a speedy trial is among the most frequently violated Convention rights; 26.37 % of the cases in which the Court finds an infringement of the ECHR concern the length of proceedings[2]. Thus, violations of the right to a speedy trial play an important role in the Strassbourg jurisdiction and add considerably to the overburdening of the Court.
The ECHR does not set out specific timeframes for the duration of trials, nor has the Court established general rules as to how long proceedings may last. Rather than that, it ascertains on a case by case basis whether the duration of proceedings was in light of the circumstances of the case, reasonable. This assessment is carried out in two steps[3]:
a) first, the Court establishes the time period to be considered when assessing whether the duration of the trial was reasonable (see below under II)
b) in a second step, it assesses whether this time period has been reasonably long. To this end, the Court has developed four criteria (see below under III)
II) Time period to be considered
At the outset the Court establishes the duration of the proceedings in question as relevant for the purposes of article 6 ECHR by ascertaining the point of time at which the procedure started and the time it was finalized.
1) Jurisdiction rationae temporis
However, an exception to this rule applies if the procedure started before the respondent state acceded to the ECHR.
The Court’s jurisdiction rationae temporis over infringements of the Convention committed by a country commences when the Convention enters into force in the respective country. Therefore, only the period after this point of time can be taken into account; the earliest starting point of the relevant period is the date when the ECHR entered into force in the respondent state[4]. Yet, in cases in which the proceedings started before the respondent state acceded to the ECHR, the time which has passed before the ECHR become applicable does play a role. The ECtHR considers the state of the case at the time when the Convention entered into force in the respondent state as a factor when assessing whether the duration of the proceedings is reasonable[5].
2 ) Periods to be considered in different areas of law
When establishing the period to be taken into consideration, the Court differentiates between different realms of law
a) Criminal law
i) Starting point
Article 6 para 1 ECHR guarantees the right to a hearing within reasonable time ‘in the determination of a charge’. Since article 6 ECHR presupposes the existence of a charge, the period to be taken into consideration necessarily begins on the day on which a person is charged[6].
The European Court of Human Rights interprets the term ‘charge’ (as all legal notions employed by the Convention) autonomously. It does not consider itself bound by the understanding or definition of the term in the domestic jurisdiction of a member state, but interprets it in the context and for the purposes of the ECHR[7].
The Court has held that ‘the prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a substantive rather than a formal conception of the charge contemplated by article 6 para 1’.[8] On this basis, in Deweer v Belgium it has defined charge for the purposes of art. 6 as ‘an official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’. [9].
Later on, the Court has broadened this definition further by omitting the requirement of an official notification about the allegation of a criminal offence. In Foti and others v Italy, the European Court of Human Rights held that charge ‘may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect’.[10] Thus the Court has ruled that the period be taken into consideration may begin when the applicant’s home is searched[11], when he is notified by the police of charges against him[12], when the applicant is arrested[13], when the prosecution submits a request to lift his immunity[14] or when the tax authorities draft an audit report containing an obligation to pay tax surcharges[15]
ii) Ending point
The rationale of the right to a trial within reasonable time is to keep the period in which the suspect has to live with the burden of pending proceedings against him as short as possible[16]. Since this burden still exists until the case is finalized in last instance, the Court has held that the time to be considered includes appeal proceedings[17]. If a decision on fixing cumulative sentences remains to be made, the period until the finalization of this decision has to be counted, too[18].
b) Civil proceedings
i) Starting point
In civil proceedings the time to be considered ‘begins to run from the moment the action was instituted before the ‘tribunal’ ‘[19]. However, the Court has also ruled that ‘in civil matters the reasonable time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the Court to which the plaintiff submits the dispute’.[20]
ii) End of the time period to be considered
The period to be considered covers the entirety of the proceedings including the appeal stage[21]. Even if an interim decision is rendered, it extends to the final decision which disposes of the dispute[22]. In case the applicant takes his case to a Constitutional Court, the proceedings before this court have to taken into consideration, too, where their outcome is decisive for civil rights and obligations[23].
The period to be taken into account extends to enforcement proceedings[24]. In case civil rights and obligations are concerned, this also holds true for foreign final judgments[25]
c) Administrative Proceedings
i) Applicability of art. 6
The scope of article 6 ECHR is confined to the determination of criminal charges and civil rights and obligations. Thus, the right to a trial within reasonable time does not apply to administrative proceedings.
However, the European Court of Human Rights interprets the notion ‘civil rights and obligations’ autonomously. It has held that the concept of civil rights and obligations cannot be interpreted solely by reference to the domestic law of the respondent state[26]. Thus, proceedings, which are considered as falling within the ambit of public law in a signatory state or which are conducted before administrative courts may still concern the determination of civil rights and obligation, so that article 6 ECHR is applicable.
The assessment, whether rights are civil has to be made ‘by reference to the substantive contents and effects of the right – and not its legal classification – under the domestic law of the state concerned’.[27]. The Court has held that law suits regarding infringements of pecuniary rights which have been filed with the goal to receive compensation of damages are to be considered ‘civil’ even if the administrative court is competent for them under domestic law.[28] Tax disputes are in principle not regarded as determining civil rights or obligations.[29] There is vast jurisdiction on the question which rights can be regarded as ‘civil’ for the purposes of the Convention. An overview would exceed the boundaries of this article.
ii) Starting point
Generally, the time to be considered starts when the action is instituted before the Court[30]. Under certain conditions, it may, however, start prior to that[31]. For example, in the case Schouten and Meldrum./.The Netherlands the Court held that a mandatory procedure before a commission, which is a pre-requirement to submit an action, has to be included into the time to be considered[32].
c) End of period
As in the other realms of law, the ending point is the decision by which the matter in dispute is finally decided.
III) Criteria
As pointed out, the Court assess whether the duration of proceedings in a given case has been reasonable considering all circumstances of the case. To this end, it has developed four main criteria, namely the complexity of the case, the conduct of the respondent state, the conduct of the applicant and the importance of the matter for the applicant.[33]
1) Complexity of the case
The Court examines whether the complexity of the case justifies the length of proceedings. Complex cases allow for more protracted proceedings. Factors which determine the complexity of the case may be the number of witnesses or expert witnesses, the volume of evidence to be examined, the number of accused the difficulties of the legal issues rising from the case or the intervention by other persons[34].
2) Conduct of the applicant
The Court also takes into consideration, in how far the duration of a certain trial can be imputed to the applicant. An ‘applicant’s behavior constitutes an objective fact which cannot be attributed to the respondent state and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Art. 6 para 1 has been exceeded’[35].
In other words, an applicant cannot complain about delays of the proceedings which he has caused himself. Therefore the Court considers whether the applicant has followed summons, has paid the court fees[36], has submitted motions for continuance[37], whether he complied with his promise to submit certain documents[38] or whether the lawyer of the applicant has requested to schedule a hearing in a timely fashion[39]. However, the applicant cannot be blamed for making full use of the remedies available to him under domestic law[40]. At least in criminal matters he is under no obligation to actively co-operate with the judicial authorities[41]
It should also be borne in mind, though, that delays caused by the applicant are only one factor which the Court ponders when assessing if the duration of the proceedings was reasonable. The Court can still find a violation of art. 6 if some delays are attributable to the applicant, but are outweighed by delays which the respondent state has caused[42].
3) Conduct of the respondent state
Another criterion the Court applies is in how far the duration of the proceedings can be imputed to the respondent state. In that respect, the Court gives special attention to periods of inactivity[43]. For example, in the case Arsov v The former Yugoslav Republic of Macedonia has based its finding of a violation of the right to a fair trial inter alia on the fact that the Basic Court Kocani had been completely inactive for a period of two years and eight months and that the procedure had lain dormant for another year after that.[44] In the case Dumanovski v The former Yugoslav Republic of Macedonia the Court found a violation chiefly due to the inactivity of the Employment Bureau and of the Minister of Labor and Social Affairs, who had failed to act on appeals by the applicant despite of being instructed to do so by the Supreme Court.[45]
However, there may be a violation of the right to a speedy trial even if the respondent state did not display any inactivity. In the case Parizov v The former Yugoslav Republic of Macedonia, the case had been reconsidered five times following appeals. The Court came to the conclusion that there had been a violation of the right to a trial within reasonable time although the domestic courts had not been inactive. It pointed out that ‘although the Court is not in a position to analyse the 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’, which engaged the responsibility of the state[46].
The question, whether the length of proceedings is attributable to the state is not to be confused with the question of responsibility of the individual judge for delays. Even if the judge who is handling the case is overburdened, this cannot justify overly long procedures. The state is under an obligation to organize its legal system in a way that the courts can guarantee everyone’s right to obtain a final decision within a reasonable time[47]. The enjoyment of the right to a trial within reasonable time must be secured by the authorities through all appropriate means, including change of practice or legislative amendments if necessary[48]. A chronic overload of courts cannot justify excessive length of proceedings[49] Therefore the Court has reiterated in the case Dumanovski v The former Yugoslav Republic of Macedonia that ‘the workload in the national Courts cannot be considered as a factor that can excuse the protracted length of the proceedings’[50] (in this case, the Government had brought forward the argument that the Supreme Court had been unable to render a decision in the case of the applicant since it was overburdened, partly because it had to deal with complaints regarding the local elections of 2000, see para 42 of the decision). It is also the state’s responsibility to ensure that experts whose opinion is needed deliver their expert opinion in a timely fashion[51]. If hearings have to be postponed several times due to the absence of witnesses, the responsibility of the state is engaged if the court handling the case does not avail itself of all measures available under domestic law.[52]