The "reasonable" right to the opposition in the European perspective

Antonietta Confalonieri*

SUMMARY : 1. European context. - 2.The right to be tried within a reasonable time. - 3. The right of appeal in criminal matters. - 4.The right of appeal for the Prosecutor. - 5. The right of appeal for the victime. - 6. The reasonable right of appeal . - 7. Guidelines for lost judicial time.

1. European context.

The matter of the justice’s times is in common with every juridical system in the whole European context, this constitutes a guaranteed right in the conventional circle of Council of Europe and an official burden for European Union.

In this context two valuable initiatives must be signal:

  • The establishment of CEPEJ - European Commission for the Efficiency of Justice[1] by the Committee of Ministers of the Council of Europe, the last report is publish in December 2008([2]);
  • The European Parliament recommendation to the Council on the quality of criminal justice and the harmonisation of criminal law in the Member States([3]).

2. The right to be tried within a reasonable time.

The right to be tried within a reasonable time is one of the accused rights recognized in art. 6 § 1, Convention for the protection of Human rights and fundamental Freedoms(ECHR).

The judicial practice has changed the contents of the term “reasonable”, and now his meaning is “efficiency” of trial instrument, but the efficiency has not to compromise the other guarantee of a fair trial: there is not efficiency if there is fundamental principles’ infringement([4]).

The term “efficiency” has to bereported to good course of judicial administration, while the term “efficacy” to every legal institution that has to be able to weigh on concrete terms([5]).

Criminal proceeding’ s efficiency postulates efficient basic services and efficient judicial and forensic setting.

Trial’s “reasonable time” is a right for the accused, but the speedy trial weighs also on the whole community and on the justice’s expectations of crime’s victim.

The European Court of Human Rights has often invited the Member States to give attention at trial’s feeble person, without forget the needs of victims and witness([6]).

3. The right of appeal in criminal matters.

The right of appeal in criminal matters is recognized at art. 2 Protocol no.7 Convention for the protection of Human rights and fundamental Freedoms.

The Human rights Convention gives two different guarantees

  1. art. 13 ECHR: access to the justice and right to “an effective remedy before a national authority”;
  2. art. 2 Protocol no.7 ECHR([7]): right of convict to have double degree of judgment in criminal matters([8]).

The right of appeal is expressly admitted only for the convict, who have the right to have his conviction or sentence reviewed by a higher tribunal.

The second part of art. 2 Protocol no.7 ECHR consents to draw the line at the right at a new trial: this right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.

It’s possible to rationalize every control’s system restricting the hypothesis of opposition, and without doubt, to exclude the possibility of the appeal of the sentences relative to the minor character would make lower the workload of judicial offices([9]).

It is evident that in this context the right of appeal isn’t recognized neither to the Crown Prosecutor, nor to the crime’s victim.

The European Court of Human Rights has always denied that art. 6 ECHR could be accounted as the benchmark for require a second degree of judgement([10]); it is not possible to gather from art. 6 § 1, ECHR the existence of a duty to institute some opposition instruments; but if Statescreate these tools, they have to comply with fundamental guarantees of art. 6 ECHR([11]).

When the convict exercises the right to a second degree of judgement, the new trial has to be celebratedin equitable way, in the Strasbourg’s jurisprudence meaning([12]).The new trial have to be a fair trial.

Every way, the enforcement of guarantees provided to art. 6 ECHR for opposition trial depends on different proceedings, because it’ necessary to take into account the proceeding and appeal judge’ role of States([13]).

It means that has to be guaranteed:

  1. the right to defend himself in person and trough legal assistance:
  2. the deadline for the convict’s appeal against conviction have to be suitable, and it has to accrue from the sentence pronounce, not from the publication of motivation([14]);
  3. the participation of defence counsel at the appeal([15]);
  4. the participation of convict at the appeal, especially when his responsibility is valued in fact and in right([16]). The Strasbourg jurisprudence gives less strict statements, with regard to opposition judgement, when the second trial analyses convict’s liability only in matter of law([17]);
  5. right to “egalités des armes” (fair balance) : there is a violation of art. 6 § 1 ECHR, if, during the opposition trial, Attorney General’s write conclusions aren’t cognizable for convict, who then can’t return answer([18]).
  1. the right to a public hearing
  2. public hearing is necessary to protect citizen from a secret justice that evades public check([19]) and to preserve credibility and trust in judicial body, and it gives transparency to justice’s administration([20]).
  3. anyway, publicity isn’t capital in all the phases of the procedure([21]), there can be some exceptions: for particular reasons like exceptional circumstances of concrete case([22]), trial can be celebrate in camera (art. 6 § 1 ECHR), but in this case it’s necessary that the accused has the right to a public hearing, at least in the abstract([23]).
  4. trial must be in an appropriate and accessible place([24]).

In the third pillar of the European Union (Police and Judicial Co-operation in Criminal Matters), the accused rights ( or “procedural rights”) topic is again in agenda: the Stockholm future programme identifies the necessity to improve process guarantees in penal trials like one of the most important points in justice area ([25]).

4. The right of appeal for the Prosecutor.

ECHR don’t guarantee to Crown Prosecutor the appeal right against acquittal([26]).

It could be possible to infer this right from the principle of “egalités des armes” - fair balance - for process parties.

For understand the principle of “egalitès des armes” it’s necessary to start from “presumption of innocence” right, that involves in the burden of proof charged to the Public Prosecutor. Therefore trial is characterized from structural and fundamental parties inequality: so it’s realized the “exigence de l’égalité des armes au sens d’un juste équilibre entre les parties”( [27]).

“Fair balance” principle – that “vaut en principe aussi bien au civil qu’au pénal” – doesn’t involve necessarily acknowledgement of equal powers, but the “egalitès des armes” implies the duty to give to each party the concrete possibility to expound own fielder, in non disadvantageous conditions compared with opponent([28]).

The “egalitès des armes” (fair balance) principle, like point of departure for the Public Prosecutor’s oppositionright – especially against acquittal – isn’t appropriate([29]). European Court of Human Right has remember that art.6 doesn’t guarantee the right to sue or condemn citizens([30]), neitherthe right to a second degree of jurisdiction, that art.2 Protocol no.7 ECHR reserves to convict([31]).

In the Guillemot affaire the Court has assert: “En conséquence, en réclamant, au profit du ministère public ou des coaccusés, un droit d’appel des arrêts d’acquittement, la requérante invoque un droit qui n’est pas garanti par la Convention.” ed inoltre «la Convention ne garantit pas le droit à la vengeance privée, à l’actio popularis ou de faire poursuivre pénalement ou condamner des tiers» … «... et qu’aucune disposition n’impose une obligation de résultat supposant que toute poursuite doit se solder par une condamnation, voire par le prononcé d’une peine déterminée.» ([32]).

5.The right of appeal for the victime.

The “fair trial” affirmed in the art.6 ECHR recognizes some guarantees for accused that, in jurisprudence’s opinion, have indirect reflexes on crime victim and on witness, but don’t assure them any protection, except read art. 6 ECHR in a civil point of view([33]).

Crime victim hasn’t the right to a fair trial, unless doesn’t promote a civil action in a criminal trial([34]).

For European Court of Human Right crime victims has only civil right, so protected from art. 6 § 1 ECHR, not only in the hypothesis of indemnification, but also when trial result is decisive for determine the civil right([35]), or when, regardless of his legal qualification, the right has civil contents and effects, in the European jurisprudence([36]).

In the European initiatives, it’s necessary to signal the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings([37]), that is in harmony with Presidency Conclusions of Tampere European Council (15-16 October 1999).

In whereas no.9 of Council Framework Decision is affirm that the provisions do not, however, impose an obligation on Member States to ensure that victims will be treated in a manner equivalent to that of a party to proceedings. Therefore the victim could have not the same rights of the other proceeding’s parties.

However, it’s affirming the idea to place on the same plane the victims and the author of crime, trying to propose symmetrical guarantees: protection for victim and guarantees for author.

Victim’s claim to obtain indemnification derived from crime doesn’t go unnoticed.

The European path is:

  • “Green Paper” of Commission of European Communities([38]) on Compensation to crime victims.
  • Council Directive no.2994/80/EC of 29 April 2004 relating to compensation to crime victims([39]).

6. The reasonable right of appeal.

The exam of Strasbourg jurisprudence([40]) consents to affirm that the valuation of reasonableness of trial time implicates a calculation of length of time with a dies a quo (start)and a dies a quem (stop) ([41]), and “excessive length” can concern the trial in his totality or only a phase([42]).

Strasbourg Court hasn’t fix, in the abstract, a maximum threshold referential([43]), but has elaborated some criterions([44]) that are functional at measuring, in concrete terms, of reasonableness of trial time with relation to case circumstances: affaire complexity, accused conduct, behaviour of appropriate National Authorities([45]) and the interests at stake (enjeu) ([46]) influence the measuring of trial time.

  • Accused conduct: art.6 ECHR doesn’t ask for a accused co-operation with the Public Prosecutor([47]); it isn’t possible to reproach accused for have use every defence legal instruments([48]); accused can choose means that right offers to him for curtail the trial time, but he isn’t forced([49]); accused can use opposition means([50]), provided that he isn’t encouraged from dilator purposes([51]), but he can remedy irregularity of Public Prosecutoro judge ([52]).

If accused contributes to prolong trial time beyond measure, can’t be declared the violation of the right to be tried within a reasonable time([53]).

  • Behaviour of appropriate National Authorities: for Strasbourg jurisprudence, l’ “encombrement chronique du role d’une juridiction” can’t be accounted as valid justification of delay([54]);heavy workload of judicial offices don’t represent a justification of delay in celebration of hearings([55]); delay depended on structural problems of national judicial system isn’t justified([56]). Every MemberState has to assure efficiency of his services and his judicial body([57]): art. 6 ECHR forces Member States to organize them judicial systems so that judges can perform its offices in respect of reasonable last of trial([58]), that is in the tightly necessary times for complete the functional activities to pursue the check of charge’s grounding([59]).

Dead times, like intervals between trial activities unjustifiable on the basis of objective trial needs([60]), are “not reasonable”. On Member States there is an result obligation.

7. Guidelines for lost judicial time

The second degree trial is, for convict, a right that has to be exercise in a guarantee context, where reasonable time of trial is one of the primary objective.

An unforeseeable and endless trial length causes a damage to every user of judicial system, and a justice bad working exerts an influence, not in negative way, on civil society, on living together, on national economy, on business system.

The Commissioner of Human Right of Council of Europe([61]) has affirm that:

“13. The consequences of such delays can be dramatic, with the denial of the right to justice within a reasonable time having a knock-on effect on the enjoyment of other civil and, often, fundamental rights. In respect of criminal cases the consequences for the accused are obvious, particularly for the innocent, who must endure protracted damage to their reputation, and for those, regardless of their guilt, who spend lengthy periods in detention awaiting judgment. Beyond the consequences for the accused, however, lengthy delays also deny victims justice and, more generally, contribute to a certain impunity undermining the rule of law and public security”.

It’ s also true that justice isn’t a world of self, but is a part of an universal system, so it’s fundamental to demand efficiency of satellite services essentials for regular judgement course. Instead often inefficiency of other sectors block trial course, with serious temporal recoils.

It’s important to underline two general aspects:

  • the budget for justice (Report CEPEJ 2008, Conclusion 16.3);
  • the ensemble of person charged to administer justice.

The first general aspect sets that the judicial system needs to have sufficient resources to cope with its regular workload in due time. The resources have to be distributed according to the needs and have to be used efficiently.

The sector headed for offices’ productivity asks for the allocation of proper budget. In particular productivity increases, in exponential way, if it’s able to take advantage of technical improvements, using computerizing (computer science) and exploiting every service of technical-computer assistance.

In the last CEPEJ Report([62]) it’s highlight that computer sector potentialities aren’t exploited in a suitable way in the most Member States([63]), but the juridical context future has to be computerized.

This is one of the cardinal point of Stockholm program that, what’s more, aspires to facilitate access to justice counting upon the possibilities offered by new technologies([64]) and deems evident the necessity to mobilize the necessary technological instruments specifying that the new technologies have to support and favour development in mobility terms assuring security and freedom for citizen([65]).

The second general aspect sticks to the fact that the justice is administered not only by judicial power, with lawyers, but also by administrative staff, who has to possess an able professionalism and to be in sufficient and necessary quantity for office functioning. The administrative staff is divided in four category:

  1. who has a distinguishing professionalism (“Rechtspfleger”);
  2. juridical assistant (who assists the judge, flat out);
  3. who is responsible for bureaucratic questions and for management of juridical offices;
  4. technical staff of law courts([66]).

Therefore the involvement of everybody combine to administer the justice (with suitable training, appropriate motivations and attractive incentives) is inescapable.

A final remark has to be reserved to “search of lost time”.

This is the object of Saturn Centre, created in the bosom of CEPEJ([67]), that recently has elaborated and published some guidelines functional to manage better trial time([68]). From general principles suggested, after invitation to transparency and foreseeability, stands out the auspice that trial time will be optimum and foreseeable:

  • optimum length: The length of judicial proceedings should be appropriate. It is particularly important and in the public interest that the length of judicial proceedings is not unreasonable. The cases should not last excessively long. They should, under some circumstances, also not be too short, if this would unduly impact the users' right of access to court. The time management of judicial proceedings, if not determined by the behaviour of the users themselves, should be made in an impartial and objective manner, avoiding significant differences with regard to timing of similar cases. Particular attention should be given to the appropriateness of the total length of proceedings, from the initiation of the proceedings to the final satisfaction of the aims that the users wanted to obtain through judicial process.

Finally a gloss has to be dedicated to flexibility degree.

The time management of the judicial process has to be adjusted to the needs of the concrete proceedings, paying special attention to the needs of users.

The normative setting of time-limits by legislation or other general acts should be used cautiously, having regard to possible differences in concrete cases. If the time limits are set by the law, their observance and appropriateness should be continually monitored and evaluated.

If the law provides that particular types of cases should have priority or be decided urgently, this general rule has to be interpreted in a reasonable way, in the light of the purpose for which the urgency or priority was provided.

The elaborate study indicates:

Guidelines for legislators and policy makers ([69]);

Guidelines for authorities responsible for administration of justice ([70]) and for court managers ([71]);

Guidelines for judges:

  • Active case management([72]);
  • Timing agreement with the parties and lawyers([73]);
  • Co-operation and monitoring of other actors (experts, witnesses etc.)([74]);
  • Suppression of procedural abuses([75]).

* Professor of laws in criminal compared procedure, Urbino’s University . Abstract of report’s text for The Meeting of the Heads of the Courts of Appeal of the UE Capitals; translate by Cecilia Moncagatta e Antonietta Confalonieri.

[1])European Commission for the Efficiency of Justice CEPEJ, .

[2]) European Commission for the Efficiency of Justice CEPEJ, European judicial systems Edition 2008 (data 2006), Efficiency and quality of justice: the aim of this Report is to evaluate the functioning of the public service of justice in the member states of the Council of Europe and to promote the tools for analysing the court activities. This evaluation must fully take into account the specificity of this public service: the essential principle of the independence of the judiciary and the impartiality of judges, which is a pillar of a state governed by the Rule of Law. It is only within this framework that policy makers and judicial practitioners have the duty to work towards always more efficiency and quality of their judicial systems, for the sake of 800 millions Europeans.

[3]) 2005/2003INI P6_TA(2005)0030 Quality of criminal justice in the European Union. “B) whereas this right to justice includes, in particular, the right to an effective remedy, the right of access to an impartial tribunal, the right to a fair trial, the right to be tried within a reasonable time and the right to access to legal aid, as well as full respect for the fundamental rights of persons suspected of an offence prior to criminal proceedings and the right to respectful and humane treatment, pursuant to the international standards of the UN and of the European Convention on the prevention of torture and inhuman or degrading treatment or punishment, for convicted persons following such proceedings;