< Viewpoints < 2007

“Long delays in court proceedings threaten the rule of law”

[15/10/07] Courts in Europe are not all perfect. One unfortunate reality in many countries is the excessively lengthy proceedings. In spite of a broad recognition that “justice delayed is justice denied”, too little has been done to secure conclusions in courts within a reasonable time. We know this because of the huge number of complaints which are brought before the European Court of Human Rights in Strasbourg from France, Greece, Italy, Poland, Portugal, Turkey and other countries.

Unduly delayed court proceedings are in themselves a violation of the European Convention which provides that “everyone is entitled to a fair and public hearing within a reasonable time” (Article 6 § 1). This provision applies to both civil and criminal trials, as well as certain disciplinary and administrative proceedings.

The subject matter of certain cases calls for special diligence on the part of the authorities. So called “priority” cases include those where one of the parties is ill, or where the issue concerns an employment dispute, a child-care matter or a claim for compensation as a result from medical malpractice. In such cases it is particularly important that there is a quick resolution.

The European Convention also specifically mentions that everyone arrested or detained has the right to be brought promptly before a judicial authority and is entitled to a trial within a reasonable time (Article 5§ 3).

In a number of resolutions, the Council of Europe’s Committee of Ministers has stated that excessive delays in the administration of justice constitute an important danger, in particular for the rule of law.

This warning should be taken seriously. Inordinately long court proceedings tend to undermine the credibility in the justice system as a whole. The general public needs to feel confident that the State is able to dispense justice in a timely fashion. Otherwise justice is illusory and citizens may be tempted to take matters into their own hands. This is potentially dangerous.

Legal certainty requires that matters of dispute are resolved and peaceful coexistence is restored. Court users should be able to foresee when a court proceeding is likely end. Lack of predictability creates frustration and an unfortunate feeling of powerlessness.

Excessive delays may also have very concrete negative implications for the parties to the proceedings, whether claimant or defendant:

- As time passes, evidence disappears and new evidence has to be adduced. This may cause practical as well as financial difficulties;

- Witnesses may forget the events at issue, lose credibility or move on;

- Court costs increase.

Furthermore, lengthy proceedings may themselves result in breaches of other human rights. In custody or parental authority cases, for example, delays in deciding matters between parents can have decisive or irreversible results for one of the parties.

Of course, it has to be emphasized that some cases do reasonably necessitate lengthy examination. Complex cases (either legally or factually) or those spanning a number of levels of appeal, for example. In addition, the applicant’s conduct cannot be ignored. However, long periods of inactivity on the part of the court in question should be examined closely.

An effective remedy before a national authority is particularly important in cases involving allegations of unreasonable length of proceedings. This was emphasized by the Strasbourg Court in the Kudła v Poland judgment of 26 October 2000. National authorities are of course better placed than the European Court to act quickly to accelerate pending proceedings and/or provide compensation.

Following the impetus given by the Court in this judgment, several solutions have been put forward in member states in order to provide effective remedies allowing violations to be found and adequate redress to be provided. These include measures to accelerate proceedings in ongoing cases as well as financial reparation for damage already incurred.

The European Convention system has an interest in ensuring that its long-term effectiveness is not jeopardized by an ever-increasing number of applications before the Strasbourg Court. After all, the onus on implementing the Convention lies on the State parties themselves first and foremost.

Introducing a domestic legal remedy for lengthy court proceedings is a first step, but not a final solution. More work still needs to be done to tackle the problem at its root: better case management, judicial training, penalties for late submitting of documents/evidence, the setting of strict deadlines, more resources given to increasing the number of judges as well as court clerks and assistants.

In this way, improvements in the administration of justice help to bolster the rule of law.

Thomas Hammarberg

Links

The Venice Commission has evaluated the effectiveness of the domestic remedies: Report on the Effectiveness of National Remedies in Respect of Excessive Length of Proceedings (CDL-AD(2006)036rev, December 2006)
The Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) has published in December 2006 two reports on this problem:
“Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights” (CEPEJ(2006)15)
and
“Time management of justice systems: a Northern Europe Study” (CEPEJ(2006)14)


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