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Vincent A. de Gaetano (ETPC)1Reasonable time and hasty decisions – the Article 6 dilemma for domestic courts

Why does the European Convention on Human Rights (ECHR) require in Article 6 that both civil and criminal cases (provided they fall within the ambit of Article 6 – i.e. in the determination of “civil rights and obligations” or of a “criminal charge”) should be decided within “a reasonable time”?

The idea of justice within a reasonable time has, of course, an ancient lineage, particularly in the English common law tradition. Already in 1215, on a beautiful meadow at a place called Runnemede, more or less mid-way between Windsor and Staines,2 King John was promising to his barons in the iconic Magna Charta: Nulli vendemus, nulli negabimus aut differemus rectum vel iusticiam – to no one shall we sell, to no one shall we deny or delay, right or justice. Sir Edward Coke (Attorney General for England and Wales and later Chief Justice of the King’s Bench – 1596–1616) said of this expression that it meant that “…every subject for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay”.3

So, why is the reasonable time requirement so important? Basically because the effectiveness of any legal system is at stake with every case, civil or criminal, that is pending before a court; a lack of effectiveness brings about a lack of credibility in both the legal and the judicial systems; and such lack of credibility undermines the very notion of the rule of law. This may appear obvious to each and every one of us, particularly those of us who sit on the Bench daily, but the European Court of Human Rights (ECtHR) has had to spell out all this in a number of judgments when it was faced with delays that, in a sense, had become accepted or endemic in a number of legal systems. In the case Stögmüllerv. Austria4 – a case dealing with Article 5 – the ECtHR noted that Article 6 aims to protect all the parties to court proceedings “against excessive procedural delays”, and that in criminal matters in particular, Article 6 “is designed to avoid that a person charged should remain too long in a state of uncertainly about his fate” irrespective of whether or not that person is held in detention awaiting trial. Twenty years later, in a case brought against France – H. v. France5 – the ECtHR added that the reasonable time guarantee “underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility”. This was a case brought by a person against the state hospital in Strasbourg for medical malpractice. It took seven years and seven months at two levels of jurisdiction (the Strasbourg Administrative Court and the Conseil d’Etat) for a final decision to be rendered, a period that was punctuated by requests by the courts for information which was already in the files, as well as by long periods of inactivity in connection with Mr H’s case because the courts had hundreds of other cases to deal with.

As judges we all strive to dispense justice correctly, in other words to make sure that we have understood the facts properly, and that we have applied the correct law to the facts as so understood; and, moreover, that we have applied (and, where necessary, interpreted) correctly the proper law. We also must ensure that all the parties to a case, therefore plaintiff and defendant as well as third party intervenors and persons joined in the suit, are given adequate time and facilities to present their case in a proper manner. The moment a suit is joined – or the moment a person is charged with a criminal offence – there is an inevitable tension between the requirements of a fair hearing on the one hand, and that of a hearing within a reasonable time on the other.

And this is where the tricky part comes in: whereas a judge, at whatever level of jurisdiction – whether first instance, appeal, cassation or a higher court – can generally exert a personal and direct influence on the fairness of the proceedings through interlocutory decrees and measures, when it comes to the reasonable time requirement so many other considerations and variables which are often outside the control of the judge come into play: the court’s (or the judge’s) workload; the judicial and legal culture obtaining in a particular jurisdiction; changes in the composition of the court; and situations over which no judge really has any control, like illness of the parties, their lawyers or indeed of the judge himself or herself – and these are only a few of the variables that can come into play.

While the reasonable time requirement is essential for the credibility of the legal and judicial systems of any particular jurisdiction, the quality of the judgments handed down is equally important. Judgments which get the facts or the law wrong, particularly at first instance, with the consequent reversal upon appeal, invariably detract from the credibility that I have mentioned. They also lead to unnecessary delays because the case file is generally sent back to the first court for rectification. Or take the case where a judicial pronouncement, remanding a person in custody pending trial, fails to justify the decision by providing “relevant and sufficient” reasons for the continued detention of the alleged offender – a higher court or, indeed, the ECtHR may come along with a violation of Article 5(3) of the Convention. The judge on the ground is often faced with this dilemma – should I take more time to draft a judgment or a decision which will be perfect in every respect and which will not be overturned or criticised by higher courts, or should I try and speed up matters by being brief, but risk being overturned on appeal?

Let me make it clear – delays in the justice system are not something found only in Poland. A look at the statistics of the ECtHR will clearly dispel any such idea. Recently a leading newspaper in Malta reported a judgment delivered by the first instance civil court of the island dismissing a claim by a former prison official that he had been unjustly dismissed from office6. I looked up the judgment on the official Ministry of Justice website. It was a simple case of judicial review of administrative action. The judgment gives a comprehensive account of the facts, deals with every preliminary plea and every argument in great detail, every argument and conclusion of the court being supported by quotations from case law duly noted in numbered foot notes, in short a gem of a judgment – ideal for students. However the case had commenced in the year 2000 – in other words it took 17 years for the case to be decided at one level of jurisdiction! Or take another case, less dramatic, decided last year by the ECtHR – O’Neill and Lauchlan v. the United Kingdom7. To be fair, it must be said the United Kingdom is generally known for having on the whole a system by which civil and criminal cases are disposed of expeditiously. So what happened in this case? The applicants were convicted paedophiles. While serving their sentences for these various sexual offences, in September 1998 they were questioned in connection with the murder of a woman with whom they had shared an apartment. In April 2005 they were formally charged with the murder of this woman, but the prosecution soon dropped the case as it was of the view that there was not enough evidence to secure a conviction. Subsequently, however, new evidence emerged and in September 2008 both were formally indicted. Between their indictment and their actual trial by jury – a period of 20 months – both applicants lodged a number of motions and appeals, all of which were unsuccessful. The actual trial by jury lasted about a month – between May and June of 2010 – with the prosecution bringing forward more than 50 witnesses, and both were convicted of murder and of attempting to pervert the course of justice (by hiding the body of their victim). It took another four years – between 2010 and 2014 – for their cases to be finally determined on appeal, including an appeal to the Supreme Court – in total, therefore, the proceedings took nine years at three levels of jurisdiction. In its judgment the ECtHR went to great pains to underscore that at no time could it be said that there was negligent delay by the Scottish prosecuting and judicial authorities, and it further made it clear that if the various stages of the proceedings were taken separately, all but one could be said not to have been excessively long. One particular stage – a period of almost four years, from the dates the applicants lodged their notes of appeal until the final determination of those appeals – was however problematic; and the ECtHR concluded that, taken the overall length of the entire proceedings and also bearing in mind in particular that this was a case where the proceedings had started, been stopped, and then re-stared almost three years later, the total period of 9 years did not satisfy the “reasonable time” requirement. Or let us take a case closer to home – Lisovskji v. Lithuania8. The violation here found was of Article 5, but the reason was because the trial was not conducted with the “special diligence” required when a person is detained in custody pending the trial. It was, admittedly, a complicated and complex case involving drugs, a large criminal organisation dealing with drugs, and money-laundering; and it was also a high profile case to boot. More than 50 witnesses and other suspects were examined. During a period of three years and five months while the applicant was in custody and the case was being examined on the merits by the first instance court, 57 hearings were scheduled, but almost half of them were adjourned because of the absence of witnesses or co-accused. The applicant was eventually sentenced to 13 years’ imprisonment minus the time served in preventive custody. The ECtHR, however, was not impressed by the way the trial was conducted. It noted in particular that scheduling an average of one hearing per month did not display sufficient diligence on the part of the authorities; nor was sufficient diligence shown when the authorities did not take the necessary measures to ensure the presence of the other co-accused, with the result that 26 of those hearings had to be adjourned – as a result of the adjournments there were several long periods, each of several months, when no hearings at all were held. To be sure, the Court accepted the Lithuanian Government’s submission that the criminal proceedings against the applicant were complex and of a large scale; however it considered that neither their complexity nor the fact that they concerned organised crime could justify detention of such length as in that case:

“While the Court accepts the Government’s submission that the criminal proceedings against the applicant were complex and of a large scale, it nonetheless considers that neither their complexity nor the fact that they concerned organised crime can justify detention of such length as in the present case… The authorities have not advanced any exceptional circumstances able to demonstrate otherwise, such as, for example, the need to collect evidence abroad or to request international legal assistance… Furthermore, although the domestic courts acknowledged on several occasions that the period of the applicant’s detention had been very long, it does not appear that any measures were taken to speed up the proceedings. The Court observes that hearings were adjourned mainly because of the absence of witnesses or co-accused, and acknowledges that in certain situations that could be justified; however, in the present case the Court does not discern any attempts on the part of the domestic authorities to fix a tighter and more efficient hearing schedule in order to avoid the repeated adjournments… In such circumstances, the Court considers that the domestic authorities did not display special diligence in the conduct of the criminal proceedings against the applicant during the lengthy period of his detention on remand… Accordingly, there has been a violation of Article 5 § 3 of the Convention.”9

Basically, what the court was saying was: difficult and complex cases require special structures and proceedings to enable the state to process them within a reasonable time -- these cases cannot be left to be dealt with on the same conveyor belt as ordinary cases. This point was taken up in a very short and highly focussed separate concurring opinion by the current Polish judge on the Court, Krzysztof Wojtyczek. Allow me to quote him directly. He said:

“The essential problem in the instant case concerns the organisation of the trial. In my view States should ensure, to the extent that it is possible, that trials for serious offences follow a very tight schedule. This applies in particular to trials for offences committed by organised crime. It is true that the measure under consideration entails a complete change of paradigm for the organisation of criminal trials in many States. However, such a change is necessary not only in order to implement the rights of the accused but also to ensure a just and timely criminal-law response to serious crime and to protect public order as well as the rights of citizens in general. Although the Court determined the case from the viewpoint of Article 5, the instant judgment enhances the requirement to impose stricter trial schedules for serious criminal offences as one of the standards of a fair trial under Article 6 of the Convention.”

Let me come straight to the point – the ECtHR has, in its vast case law, set down guidelines, but it has never gauged by the calendar or set deadlines as to what is or is not a reasonable time. That depends on all the circumstances of a particular case. What is clear is that periods of inexplicable inactivity on the part of the State authorities, repeated adjournments of a case or the repeated renvoi of a case file between one court and another, are not acceptable. Likewise it is also clear that just as the lack of financial or other resources cannot justify prison conditions which reach the threshold of Article 3 – Orchowski v. Poland10 – and a State must organise its penitentiary system so as to ensure compliance with the Convention standards, so also when it comes to length of proceedings such things as backlogs, workloads of individual judges and lack of resources are no excuse (although there is some case law to the effect that a temporary backlog and consequent delays due to the general re-organisation of a system will not necessarily amount to a violation of Article 6 – see in this respect the case of Docevski v. the Former Yugoslav Republic of Macedonia11). In the Grand Chamber case of Frydlender v. France12 (27 June 2000) the ECtHR was quite clear: States parties to the convention must organise their legal systems so as to guarantee to everyone within their jurisdiction the right to a final decision within a reasonable time:

“The Court reiterates that 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 civil rights and obligations… It further reiterates that an employee who considers that he has been wrongly suspended or dismissed by his employer has an important personal interest in securing a judicial decision on the lawfulness of that measure promptly, since employment disputes by their nature call for expeditious decision, in view of what is at stake for the person concerned, who through dismissal loses his means of subsistence…”13

The bottom line really is this: the domestic authorities, and the judicial authorities in particular, must be seen to be pro-actively engaged in bringing civil and judicial proceedings to a final determination.

What are the guidelines set by the ECtHR for determining whether the reasonable time requirement has been met? They have been repeated in innumerable cases and, broadly speaking, apply to both civil and criminal cases. They may be summarised as follows:

1. The whole of the proceedings must be taken into account. This is really a rule of thumb. While specific delays within that entire period may not give rise to any issue, when viewed together and cumulatively, however, they may result in the reasonable time being exceeded. In any case, however, long periods in which the proceedings stagnate without any explanation being forthcoming are not acceptable.

2. In determining in a given case whether the reasonable time requirement has or has not been exceeded one must look basically at four things: (i) the complexity of the case; (ii) the conduct of the parties to the case, especially of the person (the applicant before the ECtHR) who later alleges that his Article 6 (or Article 5(3)) rights have been violated; (iii) the conduct of the relevant authorities; and (iv) what was at stake for the party or parties in the case.

3. Complexity – this may refer either to the facts or to the law. As to the law, what does “legally” complex mean? Does it mean that the applicable law is a particularly complex one, or simply that the particular domestic court is not fully cognizant of the applicable law? The second situation should, in principle, never arise – it would be a sign that incompetent people have been appointed to sit in court! Regarding the first situation, specialised courts or sections of a court could be set up be to deal with specialised laws which may either be not often invoked or which may require specialised skills in the process of their application (e.g. accounting skills, or knowledge of banking procedures, or knowledge of scientific issues connected with the environment). “Factual” complexity is a different thing, because we are here generally speaking of the requirement of more information to complete the true picture, the true state of facts, to enable the court to come to a just decision. In the Grand Chamber case of Humen v. Poland14, the ECtHR considered that certain features of the case were complex, because it was essential to obtain medical evidence in order to resolve the issue of whether there was a causal link between the applicant’s detention and the deterioration of his health. In addition, the trial court, in order to assess the pecuniary damage sustained by the applicant in consequence of serving his sentence, had to obtain from several sources comprehensive evidence relating to his employment and loss of earnings:

“It is true that it took the Gdańsk Regional Court fourteen months to prepare the applicant’s case for the first hearing and that the backlog of similar cases (twenty-eight of them) cannot be seen as a convincing explanation for the entire length of that period. However, except for that instance of failure to make progress in the proceedings, the Court does not find any substantial period of inactivity for which the authorities could be held responsible. During the period under consideration the case was twice heard at first instance and once on appeal. The hearings were held at reasonable intervals and adjourned only when it was necessary to obtain evidence… When the case was adjourned for about a year (from 17 June 1994), the Gdańsk Regional Court did not remain passive: not only did it obtain extensive medical and documentary evidence but it also duly supervised the experts’ work and made efforts to ensure that the process of obtaining evidence followed its proper course (see paragraphs 25–30 above). In view of these facts, the Court considers that, on the whole, the authorities did not fail to act with all due diligence in the conduct of the applicant’s case.”15