Judge
Court of Turin (Italy)
Deputy Secretary General
International Association of Judges
THE REASONABLE TIME
REQUIREMENT
IN THE CASE-LAW OF THE
EUROPEAN COURT OF HUMAN RIGHTS*
|
Summary: 1. General Remarks. – 2.
Reasonableness of the length
of the proceedings. Guiding
Principles. – 3. Reasonableness of the length of
the proceedings. Deeper into the Criteria
Adopted by the Court: Complexity of the Case and the Importance of What is at
Stake for the Applicant. – 4. Reasonableness of
the length of the proceedings. Deeper into the Criteria Adopted by the Court: the Conduct of the Applicant and the
Authorities of the Respondent State. – 5. Computation of
time. – 6. The Special Case of Enforcement Proceedings in
Civil Matters. – 7. Length of Proceedings in Italy and
the “Pinto” law. – 8. Length of proceedings in cases
against the UK. – 9. Length of Cases Pending before the
European Court of Human Rights. |
Turin - 2005
1. General Remarks.
According to
Article 6, Para. 1, of the European Convention on Human Rights and Fundamental Freedoms,
for
the purpose of determining fairness, proceedings are equally relevant if they
do not take place “within a reasonable time.” A great many judgments have been
delivered on that point. Actually, Article 6 (1) of the European Convention provides that
“In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.”
As the European Court
of Human Rights has often commented, the right to a fair trial is at the very
heart of the democratic system. Over the years, the “reasonable time”
requirement has been cited in nearly 50 percent of the cases in which judgment
has been given by the Court and in many more Admissibility Decisions (see Brett, Justice
in Time). The fact that, for instance, the “reasonable time” provision has
been examined in 149 of the 413 judgments given in the first half of the year
2004 indicates that access to justice in many European States continues to be
far from timely.
In the 1990s, Italy
and France were the respondent States in the vast majority of complaints
submitted to the Court concerning length of proceedings. Despite regular
reminders from the Court about the obligations inherent in Article 6, Para. 1,
of the Convention, these States have continued to answer a large number of
similar claims in recent years but are certainly not alone in failing to
guarantee fair trial rights expeditiously. Amongst the other States adding
significantly to the tally of “reasonable time” applications made each year are
Poland, Turkey, Slovakia, Portugal and Romania.
2. Reasonableness of
the length of the proceedings. Guiding
Principles.
There is no
absolute point at which proceedings are deemed to have exceeded the “reasonable
time” requirement. Instead the Court assesses the circumstances of each case,
having regard to three key matters:
·
the
complexity of the case;
·
the
conduct of the applicant and the authorities of the respondent State; and
·
the
importance of what is at stake for the applicant.
In the Zimmermann and Steiner v.
Switzerland judgment (13 July 1983, Series A No. 66, p. 11, paragraph 24),
the Court set out as follows the criteria that serve to determine whether the
length of proceedings is reasonable: “The reasonableness of the length of
proceedings coming within the scope of Article 6, paragraph 1 (art. 6‑1),
must be assessed in each case according to the particular circumstances (see
the Buchholz judgment of 6 May 1981,
Series A No. 42, p. 15, paragraph 49). The Court has to have regard, inter alia, to the complexity of the
factual or legal issues raised by the case, to the conduct of the applicants
and the competent authorities and to what was at stake for the former; in
addition, only delays attributable to the State may justify a finding of a
failure to comply with the ‘reasonable time’ requirement (see, mutatis
mutandis, the König judgment of 28 June 1978, Series A No. 27, pp.
34‑40, paragraphs 99, 102105 and 107‑111, and the Buchholz
judgment, Series A No. 42, p. 16, paragraph 49).”
The Court recalled
such criteria as well in the Vallée v. France case (26 April 1994,
Series A No. 289‑A, p. 17, paragraph 34). It drew the logical conclusion,
to which it referred in the A.A.U. v. France judgment (19 June 2001,
Application No. 44451/98, paragraph 29, available in French only unofficial
translation): “The Court recalls that it is for the Contracting States to
organise their judicial systems in such a way that their courts are able to
guarantee everyone the right to secure a definitive decision in disputes over
their civil rights and obligations within a reasonable time (see the Frydlender
judgment, paragraph 47).”
There is a
widespread conviction in the minds of Italian jurists that the European Court
has set–as a general rule–a time limit of three years for a case in the first
degree, of two years for the length of a case before the appeal court and of
one year for any proceedings before the Supreme Court (see e.g. the decision of
the Corte di Cassazione on 1st January 2004, No. 123).
Actually, it is true that some decisions could induce one to presume that the
Court shows a preference for a sort of–let me say–“three years golden rule”
(see for instance the case Widmann v. Austria, 19 June 2003). However,
as I have already pointed out, the Court of Human Rights prefers not to stick
to fixed canons, leaving itself free to decide whether, having regard to the
peculiarities of any single case (complexity of the case, conduct of the
applicant and the authorities of the respondent State, importance of what is at
stake for the applicant etc.), there has been a violation of the reasonable
time requirement.
While interpreting
Article 6, Para. 1, of the Convention, we have been accustomed to consider
“unreasonable” as equivalent to “lengthy”. However, in a case involving a
famous Italian politician, the Court had to deal with a complaint aiming at
showing the unreasonableness of the duration of a criminal procedure not
because it had been too long, but because Italian justice had been… too fast,
so preventing the accused person to adequately prepare his defence. Yet, in
this case the Court remarked that, for a part, the time-schedule of the
hearings had been decided by the Italian court with the agreement of the
defence attorneys and, for another part (about four months), the defendant had
chosen to leave the country, so giving up his right to attend the hearings.
Nonetheless, he had been always represented by his attorneys and no evidence
showed that his defence had been somehow compromised by the speediness of the
procedure (see Craxi
v. Italy, 5 December 2002). The application was therefore rejected.
3. Reasonableness of
the length of the proceedings. Deeper into the Criteria Adopted by the Court: Complexity of the Case and the Importance
of What is at Stake for the Applicant.
Coming back to the
already mentioned criteria adopted by the Court in deciding over the reasonableness of
the length of the proceedings, we shall
point out again that those criteria are:
·
the
complexity of the case;
·
the
conduct of the applicant and the authorities of the respondent State; and
·
the
importance of what is at stake for the applicant.
As for the
complexity of the case, we can evoke a judgement regarding a case of medical responsibility regarding a new-born baby, who died two days
after birth as a consequence of serious respiratory and neurological
post-asphyxia syndrome induced by the position in which it had become lodged
during delivery. The lawsuit had been investigated in the criminal courts
following a complaint together with a claim for civil damages; it had lasted six years, three months and ten days for proceedings
before four levels of jurisdiction. According to the Court, in this particular
situation that period of time could not be regarded as unreasonable (see
the Calvelli
and Ciglio v. Italy judgment of 17 January 2002, Application No.
32967196, paragraphs 63‑67).
Coming to the
criterion regarding the “importance of what is at stake for the applicant,” we
must notice that the Court has stressed that in cases relating to civil status,
what is at stake for the applicant is also a relevant consideration and special
diligence is required in view of the possible consequences which the excessive
length of proceedings may have, notably on enjoyment of the right to respect
for family life (see, among other authorities, the Maciariello v. Italy
judgment of 27 February 1992, Series A no. 230-A, p. 10, § 18, and, mutatis
mutandis, the Paulsen-Medalen and Svensson v. Sweden judgment of 19
February 1998, Reports of Judgments and Decisions 1998-I, p. 142, § 39).
Consequently, in a case of judicial separation and determination of the
arrangements for custody of the children and access rights, the Court held that
the various periods of inactivity attributable to the State, in particular the
ones from 25 November 1993 to 15 December 1994 and from the latter date to 10
July 1997, failed to satisfy the “reasonable time” requirement. Therefore,
having regard also to the total duration of the proceedings, the Court
concluded that there had been a violation of Article 6 § 1 (see Laino
v. Italy, 18 February 1999).
In cases concerning
children or individuals who are seriously ill, the Court has held that
exceptional diligence is required to ensure that proceedings are completed
within a reasonable length of time.
·
Thus,
in FE v. France [1998] Application No.00038212/97, the application of an
individual suffering from AIDS as a result of a blood transfusion was upheld
where compensation proceedings had lasted more than two years.
·
More
recently, the applicant in Schaal v. Luxembourg [2003] Application
No.00051773/99 was found to be the victim of a violation of Art.6 (1) when he
was denied access to his child for a period of more than six years as a result
of pending criminal proceedings against him. The Court held that the respondent
State had failed to take all the necessary measures to ensure that the matter
was resolved as quickly as possible.
4. Reasonableness of
the length of the proceedings. Deeper into the Criteria Adopted by the Court: the Conduct of the Applicant and the
Authorities of the Respondent State.
As far as the
criterion regarding the “conduct of the applicant and the authorities of the
respondent State” is concerned, the Court has observed that (contrary to a
widespread conviction in Italy) in civil cases the respondent State cannot be
considered responsible for the delay caused by the attempt to reach an
out-of-court settlement, since the applicant had himself requested and been granted
three adjournments of the hearing (see Laino
v. Italy, 18 February 1999).
According to
another Italian “urban legend,” adjournments of the hearings asked by either
one or both parties should be held as absolutely irrelevant by the Court’s
case-law. Quite on the contrary, in the case Ciricosta
and Viola v. Italy (4 December 1995) the European Court reiterated in
the first place “that only delays attributable to the State may justify a
finding of failure to comply with the ‘reasonable time’ requirement (see, among
other authorities, the Vernillo v. France judgment of 20 February 1991,
p. 13, Para. 34, and the Monnet v. France judgment of 27 October 1993,
Series A no. 273-A, p. 12, Para. 30).” In that case the Court added that,
although the relevant court was undoubtedly responsible for a number of delays
“the conduct of the relevant authorities was not (…) primarily responsible for
the length of the proceedings.” It noted, in fact, “that during the preparation
of the case for trial on the merits (…) the applicants–either alone or in
agreement with the defendant–requested at least seventeen adjournments and did
not object to six adjournments requested by Mr L.”
In a remarkably
clear statement of the same reasoning, the Court pointed out that “While it is
true that the principio dispositivo, to which civil proceedings in Italy
are subject, does not dispense the courts from ensuring compliance with the
requirements of Article 6 (art. 6), it makes the parties responsible for taking
the initiative with regard to the progress of the proceedings (see, mutatis
mutandis, the Scopelliti v. Italy judgment of 23 November 1993,
series A no. 278, p. 9, Para. 25).” Having said this, the Court concluded that
“even though a period of more than fifteen years for civil proceedings that are
still pending may, on the face of it, seem unreasonable, the conduct of the
applicants, who requested a further adjournment as recently as
22 March 1995, thus putting the case back until 24 January 1996, leads the
Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded.”
The same Italian principio
dispositivo (which means that in civil procedures the initiative and the
power of advancing matters rest with the parties) had been previously taken
into account by the Court in the case Capuano v. Italy (25 June 1987),
in which it had remarked that “Whilst Mrs. Capuano cannot be held responsible
for the delay due to her lawyer’s death, the same does not apply to certain
other factors that contributed to the slowness of the proceedings. For example, although her new counsel was
instructed by her on 13 April 1977, he waited for more than two months before
asking for the trial to be resumed (…). Subsequently, on 20 September 1977, he
applied for an adjournment in order to be able to submit evidence and then, on
29 November, asked for an opinion to be sought from an expert, but without
indicating the questions to be put to him; this occasioned a further delay of
some four months.” Also in that case the Court had held that “In conclusion,
the applicant was responsible to a certain degree for the prolongation of the
proceedings.”
Of course, the
(different) fact that the applicant has not asked for an acceleration of the
proceedings cannot be blamed on him/her. In the case Cerin v. Croatia (15 November 2001)
the Court noted that in order to determine the reasonableness of the length of
the proceedings, it had to consider the state of the case on 5 November 1997,
and that at that time, the proceedings had lasted seven years and four months.
The Court agreed that the case had a certain degree of complexity but noted
that, as pointed out by the applicant, it was only in May 2000 that the
Municipal Court requested documents concerning the alleged complex facts. As
regards the applicant’s conduct, it had taken him quite a while to adjust his
claim to the changes in the law, but this fact could not have prevented the
court from proceeding with the case. Moreover, under article 6 (1) it is the
duty of the courts to conclude the proceedings within a “reasonable time,”
regardless of whether the parties requested the speeding up of the proceedings.
Consequently, the Court considered that the applicant’s conduct could not
explain the protracted character of the proceedings. Accordingly, there had
been a violation of article 6 (1).
Another case in
which the conduct of the applicant was held as decisive is Arena v. Italy
(27 February 1992), concerning a civil case for damages from a car accident,
which had lasted about five years and had been concluded with the dismissal of
Mr Arena’s action on the ground of a procedural defect. Here the Court noticed
that, even though the period following the release of an expert medical opinion
had been excessive, the plaintiff had not taken out a new summons after his
application had been dismissed on the ground of a procedural defect.
Accordingly, the delays which occurred in the proceedings were not so
substantial as to violate Article 6 Para. 1.
The question of
delays caused by lawyers’ strikes was dealt with in the case Arvelakis v.
Greece (12 April 2001), where the Court first of all recalled “that there can
be doubt that an event of that kind cannot render a Contracting State liable
with respect to the ‘reasonable time’ requirement; however, the efforts made by
the State to reduce any resultant delay are to be taken into account for the
purposes of determining whether the requirement has been complied with (see the
Papageorgiou v. Greece judgment of 22 October 1997, Reports of
Judgments and Decisions 1997-VI, p. 2291, § 47).” In that case,
the Court noted that “the State made no serious efforts to speed up the
proceedings.” It further observed that “in this connection that Article 6
§ 1 of the Convention imposes on the Contracting States the duty to
organise their legal systems in such a way that their courts can meet each of
the requirements of that provision, including the obligation to decide cases
within a reasonable time (see, among many other authorities, the Duclos
v. France judgment of 17 December 1996, Reports of Judgments and
Decisions 1996-VI, pp. 2180-81, § 55 in fine). The
evidence adduced in the present case shows that there were excessive delays,
which were attributable to the national authorities. In conclusion, the length
of the criminal proceedings in issue contravened Article 6 § 1.”
In the same case
the Court noted that the adjournments which were ordered because of the absence
of prosecution witnesses caused a twenty-two month delay in the proceedings,
for which the State was held responsible. Moreover, there had been a two year
period of inactivity between the first trial and the first appeal hearing (…).
No convincing explanation for these delays had been given by the respondent
Government.
5. Computation of time.
As far as
computation of time is concerned, we can remark that–as a general rule–in
criminal cases, the length of proceedings is measured from the time at which
the defendant is charged. In civil cases, the time is measured from the date on
which proceedings are initiated.
As a general rule,
the Court takes into account as well the period during which a procedure has
been pending before the Constitutional Court. Thus, in the Diaz Aparicio v.
Spain judgment (11 October 2001, Application No. 49468199, paragraph 21,
available in French only ‑ unofficial translation), the Court observed
that “the Court has regard to the length of all the proceedings in issue,
including the proceedings before the Constitutional Court (see, for example,
the Ruiz Mateos v. Spain judgment of 23 June 1993, Series A No. 262, p.
19, paragraph 3 5, and the Süssmann v. Germany judgment of 16 September
1996, Reports Of judgments and Decisions 1996‑IV, paragraph 39).”
Starting from criminal matters, we shall
notice that in the Eckle v. Germany case (15 July 1982, Series A No. 51,
p. 33, paragraph 73), the Court observed that “In criminal matters, the
‘reasonable time’ referred to in Article 6, paragraph 1 (art. 61), begins to
run as soon as a person is ‘charged’; this may occur on a date prior to the
case coming before the trial court (see, for example, the Deweer
judgment of 27 February 1980, Series A No. 35, p. 22, paragraph 42), 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” (Idem the Metzger v. Germany judgment of 31 May 2001,
Application No. 3 759119 7, paragraph 31).
The Court continued (p. 34, paragraph
76) observing that “As regards the end of the ‘time’, in criminal matters the
period governed by Article 6, paragraph 1 (art. 6‑1), covers the whole of
the proceedings in issue, including appeal proceedings (see the König judgment
of 28 June 1978, Series A No. 27, p. 33, paragraph 98).”
For an example where there was no violation,
concerning an investigation in Corsica, see the Acquaviva v. France judgment of 21 November 1995, Application No.
19248/91, Series A No. 333‑A, paragraph 46, where the Court took into
account the particular circumstances of the case and the situation prevailing
in Corsica at the time.
As regards the civil sphere, the Court
observed in the Erkner and Hofauer v.
Austria judgment (23 April 1987, Series A No. 117, pp. 61‑62,
paragraphs 6465) that “In civil proceedings, the ‘reasonable time’ referred
to in Article 6, paragraph 1 (art. 6‑1), normally begins to run from the
moment the action was instituted before the ‘tribunal’ (…) it is conceivable,
however, that in certain circumstances the time may begin to run earlier.”
Actually, the question whether a violation of Article 6, Para. 1, may occur
before a civil lawsuit has started, is less a question of “reasonable time”
than an issue of access to a court (see on this point the case Golder v. U.K., 21 February 1975, and
the separate opinion of Judge Judge Sir Gerald Fitzmaurice).
As regards the end of the relevant period, the
Court noted in the Erkner and Hofauer
judgment (loc. cit.) that “the period whose reasonableness falls to be
reviewed takes in the entirety of the proceedings in issue, including any
appeals (…). That period accordingly extends right up to the decision which
disposes of the dispute (‘contestation’).”
Furthermore, the Court has had occasion to
make the following point: the length of enforcement proceedings following a
judicial decision must be taken into account for the purpose of calculating the
reasonable time where the dispute is only definitively settled during this
second stage. In the Silva Pontes v.
Portugal judgment (23 March 1994, Series A No. 286‑A, p. 14,
paragraphs 33‑36) the Court made the following observation concerning a
debt: “The
Court accordingly takes the view (…) that the ‘enforcement’ proceedings were
not intended solely to enforce an obligation to pay a fixed amount; they also
served to determine important elements of the debt itself (…). It follows that
the dispute (contestation) over the applicant’s right to damages would only
have been resolved by the final decision in the enforcement proceedings. (…)
There can be no doubt that Article 6 (art. 6) applies to the second stage.”
6. The Special Case of
Enforcement Proceedings in Civil Matters.
The last remarks of
the previous paragraph prompt me to deal with some special questions posed by
enforcement proceedings. The European Court of Human Rights has dealt so far
with several cases concerning the violation of the European Convention on Human
Rights by enforcement proceedings instituted in Council of Europe’s members
states according to respective national legislations. In my view, the problem
is not whether Article 6, Para. 1, applies to such proceedings, as it makes no
doubt that enforcement proceedings fall under the concept of “determination of
… civil rights and obligations.” Let me add that also the Italian Supreme Court
of Cassation has decided that Italian provisions aiming at restoring damages
for violation of the “reasonable time” (Law No 89 of 24 March 2001: see
further, under Paragraph 7) are applicable as well to enforcement proceedings
(see the case Ragnoni v. Ministero della Giustizia, judgement of the Corte
di cassazione, on 26 July 2002, No. 11046).
The question deals rather
with admissibility criteria, according to Article 35, Para. 1 (formerly Article
26, Para. 1), of the European Convention, as this provision states that “The
Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law,
and within a period of six months from the date on which the final decision was
taken.” Therefore, if the application to the European Court has been lodged
less than six months after the end of the enforcement proceedings, but more
than six months (sometimes much more time) have passed after the final decision
in the declaratory proceedings has been rendered, we can ask whether or not the
period to be taken into consideration should include as well the declaratory
proceedings. Actually, if we say yes, we have to take into account as well the
delays of the declaratory proceedings, even though this process has ended with
a final judgement issued more (sometime well more) than six months before the
day in which application to the European Court has been lodged.
In the
above-mentioned case of Silva Pontes v. Portugal, the Court of Human
Rights said that it was not for the Court to express a view on the difference
of opinion among legal writers as to whether under Portuguese law enforcement
proceedings are autonomous, as the moment at which there was a “determination”
of a civil right and therefore a final decision within the meaning of Article
26 (now Article 35) had to be ascertained with reference to the Convention and
not on the basis of national law. According to the Court, “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 (…), which would evidently
include the calculation of the amount due.”
In that case,
dealing with compensation following a car accident, at the stage of the
declaratory proceedings, the Portuguese first instance court had awarded Mr Silva Pontes damages of 540,000 escudos and,
in accordance with Article 661 Para. 2 of the Portuguese Code of Civil
Procedure, reserved for the subsequent enforcement proceedings the matter of
the reimbursement of the transport costs incurred in order to receive medical
treatment after the accident. The Court of Appeal had dismissed the applicant’s
appeal, but the Supreme Court had awarded him an additional sum, likewise to be
determined in the course of the enforcement proceedings, for damage resulting
from his/her disability. The European Court accordingly took the view that the
“enforcement” proceedings were not intended solely to enforce an obligation to
pay a fixed amount; they also served to determine important elements of the
debt itself, as was moreover shown by the size of the out–of–court settlement
on which the parties agreed. Those proceedings should therefore be regarded as
the second stage of the declaratory proceedings. It followed that the dispute
(contestation) over the applicant’s right to damages would only have been
resolved by the final decision in the enforcement proceedings.
In his dissenting
opinion Judge Morenilla correctly remarked that the majority’s approach had, in
fact, “resuscitated” the question of delays in the declaratory proceedings and
was therefore contrary to legal certainty and to the generally recognised
principles of international law.
Even more serious
objections can be raised against some other decisions brought against Italy,
as, according to the Italian law, enforcement proceedings can in no way deal
with the calculation of an amount due. According to Article 474 of the Italian
Code of Civil Procedure, such proceedings presuppose “a valid authority to
execute in relation to an obligation which is certain, the quantum of which has
been fixed and which has fallen due.” Nevertheless, in the case of Scollo v.
Italy (28 September 1995; application number: 19133/91), the European Court
considered that Article 6, Para. 1, of the Convention was applicable, regard
being had to the purpose of that particular proceedings, which was to settle
the dispute between the applicant and his tenant. In the Court’s view the
period in question began when the tenant was summoned to appear before the
judge in the declaratory proceedings. It ended when the tenant vacated the
premises of his own accord during the enforcement proceedings. Actually, the
declaratory process lasted in this case only few months, while the enforcement
proceedings lasted many years. For other such cases see Immobiliare Saffi v.
Italy (28 July 1999, application number: 22774/93); G.L. v. Italy (3
August 2000, application number: 22671/93); Ghidotti v. Italy (21
February 2002, application number: 28272/95).
The case of Di
Pede v. Italy (26 September 1996; application number: 15797/89) concerned a
petition aiming at demolishing a building erected in breach of the statutory
provisions on minimum distances from the boundaries of adjacent properties and
at removing four trees for the same reason. The European Court stated again
that the period to be taken into consideration began on the day the summons had
been originally served in the declaratory proceedings.
In his dissenting
opinion Judge Morenilla persisted in maintaining that the correct approach,
unlike what the majority had done, was to “dissociate” for the purposes of Articles
26 (now Article 35) and 6 Para. 1 of the Convention the declaratory and
enforcement phases of civil procedure, which should be regarded as two clearly
separated and autonomous stages. “Although enforcement proceedings are a
consequence of the judicial decision on the merits,” wrote Judge Morenilla,
“and although in a number of legal systems, especially those derived from Roman
law, it is the courts which have jurisdiction to ensure execution of their own
decisions on the merits, one type of proceedings follows the other and each has
its own specific legal features. A party in whose favour judgment has been
given is free to bring enforcement proceedings or not, to reach a friendly
settlement in the case or to wait for an extra–judicial solution which suits
him (…). In this case there was an obligation to perform a specific act, which
by its very nature requires the assent of the party seeking enforcement, who
may ask the court to specify the means of enforcement.”
Also in the case of
Zappia v. Italy (26 September 1996; application number: 24295/94),
dealing with damages for breach of a contract of sale relating to a flat under
construction, the European Court considered that it did not have to express a
view on the difference of opinion as to whether under Italian law enforcement
proceedings are autonomous, as, according to the Convention, “determination of
a civil right” is made when that right “actually becomes effective.” The Court
considered that the enforcement proceedings must be regarded as the second
stage of the (declaratory) proceedings; once again Judge Morenilla expressed
here his dissenting view, stressing that the declaratory proceedings had ended
with a final judgment which constituted the relevant final decision for the
purposes of the six–month limit under Article 26 (now Article 35) of the
Convention.
Concluding on this
peculiar subject, I would like to point out that the Court, taking as a
starting point a wrong decision (the one rendered in the Silva Pontes case), which
however was at least partially justified by the peculiarities of the case (in
which the enforcement proceedings dealt as well with the determination of the
sum due), extended this precedent to cases in which a final decision had been
rendered more than six months before the application had been submitted to the
Court. Of course this does not mean that no violation of Article 6 of the
Convention is foreseeable in enforcement proceedings. I just want to stress
that the only period to be taken into account is the one which begins after an
enforcement procedure has been instituted by the claimant. If a party to the
declaratory proceedings which has exceeded the “reasonable time” wants to raise
a complaint before the Court in Strasburg for alleged violations of Article 6
of the Convention occurred during that process, he/she has to apply to the
Court within six months from the date on which the final decision in the
declaratory stage was taken. A subsequent enforcement procedure will by no
means be able to “resuscitate” the question of delays in the declaratory
proceedings.
7. Length of Proceedings in
Italy and the “Pinto” law.
Italy holds the unenviable record as the state against
which the European Court of Human Rights has rendered the largest number of
sentences for violations of the reasonable time requirement. Let me add that,
as far as my Country is concerned, a provision similar to Article 6, Para. 1,
of the Convention is included in article 111, Para. 2, of the Italian Constitution, as amended by a 1999 Constitutional Law: “Each trial
shall be based upon the equal confrontation between the parties before an
independent and impartial judge. The law shall ensure the reasonable length of
the proceedings.”
Despite this provision, in practice, the average
length of Italian civil cases is intolerable. For instance, in 2001 it was
1,009 days (compared to 974 days in 2000), and of criminal cases 1,490 days
(1,451 in 2000). On December 11, 2001 the Ministry of Justice published new
figures on the civil proceedings. According to this report, more than 4,700,000
cases were pending. According to the same source, about 90% of crimes committed
in Italy were going unpunished.
In that same period the Council of Europe was taking
firm stands against Italy on this issue. In a decision on “Length
of proceedings in Italy” (Written Question No. 384 by Mr Georges Clerfayt), issued
on 3 May 2000, the Committee of Ministers of the Council of Europe expressed
its deep concern on the matter, reiterating its previous remarks that
“excessive delays in the administration of justice constitute an important
danger, in particular for the respect of the rule of law” (see Resolution
DH (97) 336), noticing furthermore that this situation was
overburdening the Court and affecting the whole supervisory mechanism.
In 1999 the Court
had pointed out once again that there had been an “accumulation of identical
breaches” in Italy for which there was no domestic remedy available to
litigants. It was emphasised in that case that such an accumulation of breaches
constituted a practice that was “incompatible with the Convention.” The Court
noted at the outset that “Article 6 § 1 of the Convention imposes on the
Contracting States the duty to organise their judicial systems in such a way
that their courts can meet the requirements of this provision.” It drew next
attention to the fact that “since 25 June 1987, the date of the Capuano v.
Italy judgment (Series A no. 119), it has already delivered 65
judgments in which it has found violations of Article 6 § 1 in proceedings
exceeding a ‘reasonable time’ in the civil courts of the various regions of
Italy. Similarly, under former Articles 31 and 32 of the Convention, more than
1,400 reports of the Commission resulted in resolutions by the Committee of
Ministers finding Italy in breach of Article 6 for the same reason.”
Therefore the Court
concluded that the frequency with which violations were found showed that there
was “an accumulation of identical breaches” which were “sufficiently numerous
to amount not merely to isolated incidents.” Such breaches reflected “a
continuing situation” that had not yet been remedied and in respect of which
litigants had no domestic remedy. This accumulation of breaches accordingly
constituted a practice that was incompatible with the Convention (see Bottazzi
& Ors v. Italy [1999] Application No.00034884/97). In the year 2000
the Court decided a case in which a civil proceedings had lasted more than 51
years (see Tripodi v. Italy [2000] Application No.00045078/98).
At the beginning of the new millennium Italian courts continued to have
a bad record concerning excessive delays in court proceedings. According to
official data, the average length of a civil lawsuit in Rome was three years,
not including any appeal. The final sentence was delivered usually after a
period of eight years, compared to the European average of four years.
According to the Inter-Ministerial Committee on Human Rights, Italy was the
country with the greatest number of violations of Article 6 of the European
Convention on Human Rights in Europe. In 2001, the European Court of Human
Rights issued 359 sentences against Italy (out of a total of 683 in all Council
of Europe member States), and approximately 3,500 cases were pending in the
Court as of the end of 2001.
Under these circumstances the Italian Parliament
approved the Law No. 89 of 24th March 2001, commonly known as the “Pinto Law” (legge Pinto) (from the name of the Senator who was its first
signatory). This act introduced the principle under which a private citizen is
entitled to “fair reparation” if suffering damage due to the “unreasonable”
length of proceedings affecting him or her, requiring the timely management of
the related proceedings. More precisely, this law provides
for the possibility to file a case with an appeal court for compensation of
damages suffered for overlong judicial proceedings.
However, the first evaluation of the law’s application
revealed several problems that made the judicial proceedings even longer. The
right of Italian citizens to file a complaint with the European Court of Human
Rights was now threatened due to the fact that they needed an excessively long
time to exhaust all domestic legal remedies. On the basis of this law, out of
6,000 appeals in Italy, about 700 have ended with a sentence against the
Italian Ministry of Justice or the Council of Ministers. Yet while the law
stated that an appeal court had to conclude a case within four months after the
case had been filed, in practice first hearings were arranged as late as after
six months and further hearings after more than one year. In addition,
compensation orders issued by the European Court have usually been higher than
those issued in Italian courts of appeal.
According to a Press release issued by the
Registrar of the European Court of Human
Rights on 18 January 2005, following the approval of the “Pinto” law,
the Court has agreed to adjourn a series of over 800 Italian length-of-proceedings
cases, pending its decision in a test case concerning the application of
Italy’s “Pinto Law.” The applicants in these cases claim that they received
insufficient compensation, although the Italian courts found, applying the
Pinto Law, that the length of the civil, criminal or administrative proceedings
to which they were parties was excessive. They all rely on Article 6 § 1 (right
to a fair hearing within a reasonable time) and, in some cases, on Article 13
(right to an effective remedy) of the European Convention on Human Rights.
In its
admissibility decision in one such case – Scordino
v. Italy (application No. 36813/97, decision of 27 March 2003) – the Court
found that the compensation awarded to the applicants under the Pinto Law could
not be considered adequate. In its Chamber judgment in the case (29 July 2004),
the Court held that there had been a violation of Article 6 § 1 and Article 1
of Protocol No. 1 (protection of property) to the Convention.
On 29 October 2004,
the Italian Government requested that Scordino
v. Italy (No. 1) be referred to the Grand Chamber of the Court, a request
which is currently before a Grand Chamber panel. The Government further asked
that all cases raising the same issues as Scordino be suspended pending, first,
the panel’s decision and, should the panel accept the referral request, the
Grand Chamber judgment. The request was met and the first hearing of the Grand
Chamber was held on 29
June 2005.
A Chamber of the
Court has also decided to relinquish jurisdiction to the Grand Chamber in
another case concerning the level of compensation awarded by the Italian courts
in the Pinto decisions, Cagnoni v. Italy
(No. 48156/99).
8. Length of proceedings in
cases against the UK.
It may be of some
interest to know that even the United Kingdom has been held in violation of the
reasonable time requirement. In Eastaway v. United Kingdom [2004]
Application No. 00074976/01 the Court held that there had been a violation of the
“reasonable time” requirement where disqualification proceedings against the
applicant had lasted nearly nine years. In reaching its decision, the Court
emphasised the significance of the fact that during this time a question mark
lay over Eastaway’s reputation and he was unable to practise as a company
director. Although Eastaway himself was to some extent responsible for the
length of proceedings as a result of his decision to pursue an unmeritous
application for judicial review after the Human Rights Act 1998 came into
force, the case was in many ways indistinguishable from Davies v. United
Kingdom [2002] Application No.00042007/98. In Davies it had been
concluded that the Secretary of State for Trade and Industry bore much of the
responsibility for delay as he had failed to comply with time-limits for filing
evidence.
In Easterbrook
v. United Kingdom [2003] Application No.00048015/99, it was considered that
a delay of nine years in setting the tariff for the applicant, who was a life
prisoner, was incompatible with Article 6 (1). The UK authorities were also
considered to be responsible for a breach of that provision where criminal
proceedings resulting in the conviction of the applicant in Mellors v.
United Kingdom [2003] Application No.00057836/00 had lasted more than three
years and eight months.
In a case
concerning civil proceedings, the Court held that the State had failed to
commence civil proceedings within a “reasonable time.” In Price & Lowe v
United Kingdom [2003] Application No.00043185/98 & Application
No.00043186/98, the Court reminded the UK government that a principle of
domestic law or practice that the parties to civil proceedings are required to
take the initiative with regard to the progress of the proceedings did not
“dispense the State from complying with the requirement to deal with cases in a
reasonable time.” It was for the respondent State to decide how to tackle such
difficulties, amongst the methods suggested by the Court were increasing the
number of judges or imposing automatic time-limits and directions.
Even when the Court
considers the case to be reasonably complex and attributes some responsibility
for delays to the applicant, there is frequently a finding of a violation on
the basis that the respondent State also bears significant responsibility for
the overall length of proceedings. Such a decision was reached in Obasa v.
United Kingdom [2003] Application No.00050034/99, a discrimination case in
which proceedings lasted more than seven years for four levels of jurisdiction
(see Brett, Justice
in Time).
9. Length of Cases Pending
before the European Court of Human Rights.
Finally, we have to
consider that the Court itself is not immune from criticism when it comes to
considering the length of time that elapses between application and judgment.
Of 17 cases pending before the Court’s Grand Chamber in August 2004, 14 of the
applications had been made to Strasbourg more than four years previously and
four of the complaints awaiting consideration had been lodged with the Court in
1996.
In December 2003
the Court declared admissible a complaint submitted by a Turkish national
serving a prison sentence in the UK (Yetkinsekerci v. United Kingdom
[2003] Application No.00071841/01). Yetkinsekerci asserted that a delay of
almost three years between his original conviction and sentence and the Court
of Appeal’s decision on his appeal gave rise to a breach of Article 6 (1). He
submitted his application to Strasbourg in May 1998 and he may still have many
more months to wait before the Court gives its judgment.
Under the
circumstances, the Court’s insistence that the authorities of States party to
the Convention are bound to organise their legal systems in such a way as to
meet their Convention obligations has a somewhat hollow ring. At a time when
more than a thousand new applications are being made to the Court each month,
the backlog can only be expected to increase under the current system (see Brett, Justice
in Time).
It remains to be
seen whether reorganisation of the Court as detailed in Protocol 14
to the Convention will speed up the process in Strasbourg. The Protocol, which
has been signed by 19 States to date, will not enter into force until it has
been ratified by all States party to the Convention.
Protocol 14 follows
on from Protocol 11 in further trying to improve the efficiency of operation of
the Court. It seeks to ‘filter’ out cases that have less chance of succeeding
along with those that are broadly similar to cases brought previously against
the same member state. Furthermore a case will not be considered admissible
where “... 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” (see Article 12 of
the Protocol).
A new mechanism is
introduced with Protocol 14 to assist enforcement of judgements by the
Committee of Ministers. The Committee can ask the Court for an interpretation
of a judgement and can even bring a member state before the Court for
non-compliance of a previous judgement against that state.
* Paper for the Workshop on “The Impact of EC Law at National Level and the Protection of Fundamental Rights”, organised in the framework of the External Actions of the European Community – Cards Regional Project 2003. The Workshop was held in Split (Croatia) on 14-16 September 2005.