Τhe right to be tried within a reasonable time and the restoration of the party’s «presumptive» prejudice

by Evita Salamoura

Within the framework of the 50th Anniversary celebrations of the European Court of Human Rights (hereinafter “ECtHR”), reference should be made to the delays in the administration of justice. This is an issue of fundamental importance that has caused deep concern at an international level and the treatment of this issue is the subject of ongoing discussion and research. A large number of applications inundate the ECtHR on a daily basis; the overwhelming majority of these concern the violation of the right to be tried within a reasonable time. It should be noted that our country, Greece, along with Italy, Poland, France and Turkey, are all in the “red zone” of violations due to the excessive amount of time required to pursue an examination of a case on its merits and to get a judgment issued by the domestic courts. Illustratively it is reported that the percentage of issued judgments for all State Parties which concern violations of the right to be tried within a reasonable time stands at 35%, of which Greece accounts for 8%. This is a remarkably high percentage if we consider that the corresponding percentage of the neighbouring country of Turkey, a country with a fivefold population, stands at 7.6% and Russia a country with a far greater population stands at just 2%.! At a national level the breach of reasonable time stands at 62%, i.e. more than half of the convictions against Greece concern such a breach.[1]

The right to be tried within a reasonable time is entrenched at an international level:

  1. Under Article 6 § 1 of the European Convention of Human Rights (hereinafter “ECHR” or “Convention”), which provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair (…) hearing within a reasonable time”,
  2. Under Article 14 § 3 (c) of the International Covenant on Civil and Political Rights (ICCPR), which provides “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (…) To be tried without undue delay, (…)”,

It should be noted that the ICCPR only grants the accused person the right to be tried within a reasonable time and not any other parties.

  1. Under Article 8 § 1 of the American Convention on Human Rights which provides: “Every person has the right to a hearing, with due guarantees and within a reasonable time, (…)”,
  2. Under Article 7 § 1 of the African [Banjul] Charter on Human and Peoples’ Rights, which provides: “1.Every individual shall have the right to have his cause heard. This comprises: (…) (d) the right to be tried within a reasonable time”.

The present study focuses on the right to be tried within a reasonable time and an attempt will be made to: a) present the guiding principles of this right, developed by the rich jurisprudence of the ECtHR, b) demonstrate the effect that the length of proceedings has on the fairness of the trial, c) determine what constitutes “just satisfaction” under Article 41 of the ECHR in relation to the violation of this right, and finally, d) set out the opportunities available, concerning appropriate measures that could eliminate or mitigate the adverse effects suffered by parties due to the excessive length of proceedings.

I. “Reasonable time” under the case-law of the ECtHR

Article 6 § 1 of the Convention provides that a court, “in the determination of civil rights and obligations or of any criminal charge” must decide within a reasonable time. The concept of reasonable time actually indicates the period within which the decisions of a court (civil, criminal, administrative) must be delivered in order for the administration of justice to be effective and efficient.

Αs far as civil cases are concerned, an expeditious holding of trial is required, in order to avoid the prolonged state of uncertainty in which the involved parties find themselves. In criminal cases, this requirement is of prime importance given the consequences experienced of a “charge” pending against the accused person.[2]

As for criminal cases, the “reasonable period” under Article 6 § 1 commences (dies a quo) from the moment that a formal charge is brought against the person. The term “charge” under the framework of Article 6 § 1 of the ECHR is an autonomous concept and can be defined “as the official notification given to an individual by a competent authority of an allegation that he has committed a criminal offence or some other act which carries the implication of such an allegation and which likewise substantially affects the situation of the suspect”.[3] In practice, the starting point when calculating the “reasonable time” may precede the date of the trial and could be the date of the arrest[4], the date that a person’s home is searched[5], the date of prosecution[6], the date an applicant was officially notified that he was to be prosecuted, the date on which the preliminary investigation/ pre-investigation/main interrogation is opened (i.e. from the moment a summons is served to the accused person to defend himself)[7]. For the civil party, the time is calculated from the time that the person declares his participation as a civil party during the trial[8]. However, it can be maintained that in some cases the “charge” does not signal the beginning of the period: Thus, if the accused person has not received any formal notification and was tried in absentia, one could conclude that although a “charge” does indeed exist, the requirement of reasonable time is not violated, since the accused does not face the pressure of criminal proceedings against him[9].

In civil and administrative cases, the starting point is calculated as the date on which the concerned proceedings are addressed, i.e. the date on which the relevant action is filed with the court’s secretary. However, when a preliminary administrative objection constitutes a prerequisite for presenting the case before the court, the ECtHR considers the starting point of the legitimate procedure to be the date of that objection[10].

The civil and administrative proceedings terminate (dies ad quem) on the date that the final decision, which resolves the dispute, is published. The criminal proceedings terminate on the date that the final decision is published, whether it be a conviction or an acquittal or a discontinuation of the prosecution.

Not taken into account is the lapse of time caused by the examination of extraordinary remedies, even if the latter is provided by domestic legislation or by the preliminary proceedings under Article 234 of the EC Treaty, before the Court of Justice of the European Communities[11].

It should be noted, that an acquittal of the accused person or an outcome in favour of the party before the national courts does not amount to deprivation of victim status[12]. This status, however, is eliminated when the party’s prejudice is recognized and restored by the domestic courts (e.g. by reduction of the sentence or by discontinuation of the criminal proceedings or by compensation of the party, or by exemption of the party from legal costs or by means of any other possible way). However, in order for the status of victim to be eliminated, in the case of award of compensation by the domestic courts, the amount of this compensation should be manifestly reasonable when compared with the financial reward that would be awarded to the applicant by the ECtHR for non-pecuniary damage. A lesser amount is acceptable only in cases where restoration would have lead to a further acceleration of the process[13].

The whole duration of the proceedings is monitored by the ECtHR, each stage of the process is included within this time period, namely the time spent before the First Instance Court, the Second Instance Court and before the Court of Cassation[14] or the Council of State[15] or the Audit Court[16], respectively. Furthermore, in criminal cases the pre-trial period is also included[17]. It can be observed that in numerous ECtHR judgments that the violation of the right to be tried within a reasonable time is recognized due to the excessive duration of one individual stage of the proceedings (e.g. excessive length of proceedings at the pre-trial stage[18] or before the First Instance Court or before the Court of Appeal[19] or before the Court of Cassation etc), even though the total time of the proceedings before the domestic courts is assessed as being reasonable. A total duration of up to two years, in normal (non-complex) cases, for each instance of jurisdiction is generally regarded as reasonable[20]. However, when proceedings last longer than two years per instance, or more than six years for the whole process (i.e. from the institution of the case until the publication of the final decision of the Court of Cassation or the Council of State), the ECtHR examines the case closely and considers whether the national authorities and the parties have shown due diligence.

Finally, under Article 35 § 1 of the ECHR, the exhaustion of domestic remedies is a condition which is necessary for the admissibility of the application. This is based on the belief that the individual members should have the opportunity to prevent or remedy the violations alleged against them before the complaints are submitted to the ECtHR[21]. However, with respect to violation of the right to be tried within a reasonable time, this obligation is flexible and the case can be examined by the ECtHR even when proceedings are pending before the national courts[22], as long as it can be argued that the trial up until that time has been unreasonably delayed. In such a case, the period taken into account, as far as reasonable time is concerned, terminates on the date on which the ECtHR issue a jdugment on the case. When a violation of reasonable time in a pending case has already been recognized by the ECtHR, the time already elapsed is also taken into account when assessing the reasonableness of the time taken in the later part of the proceedings[23].

It is also worth noting that the examination of Greek cases by the ECtHR, despite the large number of cases pending before this court, is carried out within a very reasonable time which does not normally exceed one year for cases that are declared inadmissible (i.e. without seeking in advance observations from the Government) and three years for cases that are examined on the merits.[24]

As becomes clear, from the body of ECtHR judgments, the method employed when examining relevant violations is as follows: firstly, a calculation of the period of time under consideration, then, an assessment of whether this period of time was reasonable or excessive. The Court, in several judgments indicates that it makes an overall assessment based on the specific circumstances of the case (in concreto) after taking into account measures developed through its case-law[25] and in particular a) the complexity of the case, b) the conduct of the applicant, c) the conduct of the competent authorities, and finally d) what is at stake for the applicants.

a. The complexity of the case is assessed on a legal, juridical and substantial basis and naturally determines the extension of the proceedings. However, the mere fact that a case is complex is not always sufficient to justify the excessive length of proceedings. The vast body of ECtHR case law determines that the factors determining the complexity of the case are,: the nature of the facts to be established (e.g. financial affairs), the volume of legal documents involved, the number of parties/defendants involved, the number of charges, the intervention of third parties in the procedure, the volume of the body of evidence, the number of witnesses to be examined, the examination of witnesses living abroad or at a distance from the court, a numerous amount of investigative acts, the need to obtain expert evidence, the need to produce evidence from abroad, the need for an interpreter, the need for the translation of legal documents, the relevance of the case to other cases, the complexity of legal issues, the ambiguity of the applicable rule of law, changes in legislation and the dependence of civil proceedings on the outcome of criminal proceedings[26].

b. The conduct of the applicant. This factor is the only one that can lead the Court to assume that there is no breach; even in cases where the period of time lapsed was excessive.

For example, in Karvountzis v. Greece, in the judgement of 6.11.2008, the ECtHR held that, although the total length of proceedings was more than six (6) years for three instances of jurisdiction, it did not constitute a violation because the applicant delayed lodging his cassation appeal by a period of two (2) years and even more time was needed to determine its hearing. Specifically, in para. 23, the ECtHR holds: “Pour ce qui est ensuite du comportement des parties, la Cour relève que le requérant a mis un an pour se pourvoir en cassation, délai qu’il a encore rallongé de plus de cinq mois avant de déposer copie de ce pourvoi devant la Cour de cassation et de demander la fixation d’une date d’audience, et qu’il a attendu six mois pour reprendre l’instance devant la cour d’appel de Nauplie après le renvoi de l’affaire par la Cour de cassation. Ce comportement, pour lequel le requérant ne fournit aucune explication étayée, est à l’origine d’un retard global de deux ans environ, dont l’Etat ne saurait être tenu pour responsable. La Cour note en effet que, selon les principes de la disposition de l’instance et de l’initiative des parties consacrés par les articles 106 et 108 du code de procédure civile (voir paragraphe 16 ci-dessus), le progrès de la procédure dépend entièrement de la diligence des parties ; si celles-ci abandonnent provisoirement ou définitivement l’instance, les tribunaux ne peuvent pas de leur propre initiative leur imposer sa reprise (voir, parmi beaucoup d’autres, Makropoulou et autres c. Grèce, no 646/05, 26 avril 2007). La Cour relève par ailleurs que les parties demandèrent à deux reprises le rapport de l’audience devant la cour d’appel après le renvoi de l’affaire par la Cour de cassation, ce qui retarda davantage l’examen de l’affaire.”.

Furthermore, in Mariettos and Mariettou v. Greece, in the judgement of 21.02.2008, the proceedings lasted a total of eighteen (18) years and (8) months. The ECtHR, taking into account the conduct of the applicants, stated that (§28): “Par ailleurs, la Cour admet que les requérants sont en partie responsables de plusieurs retards que connut l’affaire, notamment parce qu’ils n’ont pas fait un usage correct de la procédure : ils ont introduit une première action devant un tribunal incompétent ratione loci et ont persisté à ce qu’il examine leur affaire, puis ils ont introduit une seconde action avec le même objet devant le tribunal compétent – alors qu’ils auraient très bien pu reprendre l’instance qu’ils avaient initialement engagée, ce qui a compliqué davantage l’examen de leur affaire. De plus, il ressort de la chronologie de la procédure qu’ils n’ont pas toujours fait preuve de diligence dans la conduite de leur affaire. Cela étant, il n’en demeure pas moins que même si l’on déduit de la durée globale de la procédure les retards attribués aux requérants, soit neuf ans environ, celle-ci demeure excessive.”

With regard to the conduct of the accused person in criminal cases, the Court recalls that Article 6 does not require active co-operation with judicial authorities in expediting the proceedings. However, the conduct of the applicant is an objective fact which cannot be imputed to the respondent State and it is taken into account when deciding whether the time was reasonable or not[27].

As concerns this factor, a distinction should be drawn between the dilatory conduct of the applicant, which is that which contributes to weakening of the complaint regarding the excessive length of proceedings, and that which results from the exercise of a legal right, provided by domestic legislation, for which the accused person cannot be blamed unless he makes an extensive use of it (e.g. numerous requests for adjournments[28]). For instance, the ECtHR justifies delays due to: the exhaustion of all domestic remedies, the request for examination of witnesses or experts, the request for exemption and exclusion of judicial agents, or the absence or abscondment of the applicant[29].

c. The conduct of the competent national authorities. The ECtHR often recalls that the Signatory States are responsible for the organization of their judicial systems in such a way that their courts can guarantee anyone the right to obtain a final decision on disputes relating to rights and obligations of a civil or criminal nature within a reasonable time[30]. The way in which the State acts – either by imposing deadlines, instructions, or employing other methods – is subject to its own discretion. Where a State permits proceedings to exceed the “reasonable time” under Article 6, without intervening to reduce them, it is then considered to be responsible for the delays that occur[31]. Moreover, only delays attributable to the competent judicial authorities may lead to findings contrary to the Convention.

Even in legal systems in which the principle of initiative of the involved parties is established, such as in proceedings before the civil courts, the conduct of the judges is not exempt from meeting the requirement of reasonable time prescribed by Article 6 § 1[32]. Thus, in this context the ECtHR requires that the courts more carefully examine requests for trial adjournment and the period in which intervention is permitted between the two hearings.

However, the ECtHR has held that, unlike civil proceedings which leave the initiative to the involved parties, the proper conduct of administrative proceedings does not depend on the behaviour of the applicant to advance the process but it is imputed to the respondent State[33].

Overburdening of a judiciary system, which is the most frequent justification of inactivity by the Member States, is not accepted by the ECtHR. Furthermore, since governments refer in particular to strikes and abstentions of lawyers, the Court notes that, although it is not unaware of the complications and the backlog of cases which may result from a strike, the requirement, under Article 6, for an expeditious trial is still valid[34]. Finally, factors such as: an insufficient number of judges and judicial staff, poor building infrastructure, incorrect notification of summons resulting in the absence of witnesses, and other parties, late transfer of the case file to the Court of Appeal, delays in the write-up and validation of judgments, as well as the uneven distribution of courts within countries which leads to non–satisfaction of geographic[35] and demographic changes, all constitute organizational failures. It is these failures which lead to long time delays and States need to take positive measures in order to eliminate them[36].

d. The issue of dilatory conduct for the applicant: The ECtHR, in taking this factor into account, establishes the priority cases and furthermore draws a distinction between those demanding “special or particular diligence” and those necessitating “exceptional diligence”. In this latter category, the requirement of reasonable time is more demanding. Cases in the former category include: a) cases related to family affairs and relations between parents and children, b) cases in which parties are victims of road accidents, c) cases of police violence, d) labour disputes involving dismissals or recovery of wages, e) cases in which the applicant is serving a prison sentence, and finally, f) cases relating to applicants of a limited physical state and capacity. Cases in this category are: i) cases where the health of an applicant is critical and ii) cases of applicants of advanced age[37].

For example, in the case Svetlana Orlova v. Russia, judgment of 30.07.2009, the ECtHR held that there was a breach of the reasonable time requirement as consecutive referrals had occurred due to lack of jurisdiction. This highlighted the fact that the national courts had completely ignored the issue that the case concerned a labour dispute and also that at the time of dismissal, the applicant was pregnant[38].

 

II. The requirement of reasonable-time as a specific aspect of the right to a fair trial

 

It is said that: “Justice delayed is justice denied”.

In many cases, the ECtHR has reiterated the importance of administering justice without delays which might jeopardize its effectiveness and credibility.[39] Courts have an obligation to end situations of prolonged insecurity in which a person is found, situations which are indeed inconsistent with the rule of law, and which could in fact be considered to be a denial of justice.

Article 6 § 1 of the ECHR guarantees the party – or in criminal proceedings the accused – the right to a fair trial, that is, the right to be tried fairly. Although the concept of a fair trial is set out in general terms, the spirit of the Convention implies that the term “fair” refers to a timely, effective and unimpeachable trial, under such procedural safeguards that enable the objective search for truth and the issuance of a sound decision.[40]

From the wording of this provision, a series of rights for the litigant can be derived, including the right to be tried by an independent and impartial tribunal, which has been established by law, in public and within a reasonable time. Particular aspects of the right to a fair trial are the right to have access to a court and the right to be heard – which means the right of the party to present his arguments before the court and in criminal proceedings the right to object to the charge against him – rights which are directly related to the right to be tried within a reasonable time. The right of access to a court and the right to be heard, both become ineffective when domestic courts fail to issue a judgment within a reasonable time. This is because their sole objective is the restoration of social peace, namely the settlement of the dispute in civil and administrative cases, and the attribution or not of guilt to the offender in criminal cases, and such an objective can only be achieved by means of a court decision.

It should be further noted that under paragraph 3 of this Article, the special rights of the accused person are explicitly detailed, including the right to defend oneself and the right to examine witnesses, rights which are provided to ensure a fair trial as a whole.

Undoubtedly, the lapse of an excessive period of time from the execution of a crime or from a dispute on civil rights, leads to a weakening of the defensive position of the party/defendant, since the quality of evidence deteriorates as proceedings progress. This is due to: a) loss of memory of the witnesses and the involved parties, b) loss of witnesses due to death, disappearance, change of address, and so forth, c) loss of relevant evidence (e.g. documents) and hence d) difficulty in locating relevant evidence, which all therefore affect the issuance of a decision as there is incorrect perception over the truth of the facts. Such weaknesses which could, however, be avoided if the case was heard at a time closer to the actual events.[41] Thus, in practice, parties are deprived of the possibility of finding evidence and supporting their claims, and therefore an irreparable “presumptive prejudice” is sustained.

For example, in Kyriazis v. Greece judgment of 4.06.2009, the applicant filed a complaint against the proprietor of a car rental establishment, claiming that the poor condition of the windscreen wipers on the leased car had led to an accident. During proceedings before the Orestiada First Instance Court, which took place four (4) years after the date of the accident, the plaintiff’s counsel requested the case be postponed so that experts could be called on to examine the car wipers and present their findings before the Court. However, the Court rejected the applicant’s request, taking into consideration the time which had elapsed from the date of the accident and the normal wear of legitimate wipers[42].

On the other hand, it is also reasonable not to ignore such requests, as it also said that: “Justice hurried is justice buried.”

Accelerating proceedings is not always in the interests of the party. The speedy administration of justice should not be pursued, under any circumstances, at the expense of the proper administration of justice. Moreover, this is the purpose of the use of the term “within a reasonable time” under Article 6 ECHR. Undoubtedly, the right to a speedy trial should not be equivalent to the right of the party to be protected against any delay, but against delay which could reasonably be avoided. Under criminal law, special attention should be given primarily to the right guaranteed by Article 6 § 3 (b) of ECHR, which provides that “Everyone charged with a criminal offence has the following minimum rights: (…) (b) to have adequate time and facilities for the preparation of his defence.” Under no circumstances should this right be compromised or sacrificed for the quick conduct of judicial acts, since, as mentioned above, the requirement of reasonable time primarily serves the interests of the accused.[43]

Thus, the main purpose of judicial authorities should be the achievement of a fair balance between a speedy trial and a fair trial.[44]

Taking into consideration the above, a fair trial can only be that in which all the rights of the individual are respected and the obligations of judicial bodies are met, so that the defence of the parties is efficient and effective. Moreover, the duration of the trial, so as to be fair, should be adjusted in concreto depending on the needs of the defence, which by no means should be overlooked.[45]

The most fundamental constitutional requirement for the protection and respect of human dignity is satisfied through such an approach, which is apparently violated when the party goes from being the subject of the proceedings to becoming an object of the proceedings and thus irreparable damage to his interests is sustained[46].

In conclusion, the requirement of reasonable time is a safety valve for the guarantees and rights arising from the general right to a fair trial. Failure to comply with the requirement to be tried within a reasonable time indirectly encroaches on the body of rights granted to the parties, and thus it renders all guaranteed rights both illusory and ineffective, and is in breach of the guarantee of Article 6 §§1, 3 of the ECHR.

 

III. Just Satisfaction of the applicant under Article 41 of the ECHR

Article 41 of the Convention reads as follows: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Since the nature of the infringement of the right to a trial within a reasonable time does not allow time to be regained, the infringement cannot be redressed by restitution in integrum for the violation. Thus, fair satisfaction at a European level can only take the form of financial compensation. Thus, the applicant is awarded: a) a sum for the pecuniary damage suffered, b) a sum for non-pecuniary damage suffered and c) a sum for expenses and legal costs incurred before both the national courts[47] and the Strasbourg Court.

However, in practice, in cases of “reasonable time”, the ECtHR rarely awards a compensatory amount for the pecuniary damage suffered and rejects the applicant’s claims based on the following formalised justification: “The Court points out that its finding of a violation of the Convention was based exclusively on the breach of the applicant’s right to have their case determined within a “reasonable time”. In those circumstances, it discerns no causal link between the breach established and any alleged pecuniary damage sustained by the applicants; this aspect of their claims must therefore be dismissed”[48].

On the other hand, as far as non-pecuniary damage is concerned, ECtHR case-law states that non-pecuniary damage, is always acknowledged, which redresses the applicant for the anxiety, inconvenience and uncertainty caused by the violation. The ECtHR enjoys a certain amount of discretion in the exercise of power conferred by Article 41, as is borne out by the use of the terms “just” and “if necessary”, but any satisfaction awarded should be calculated on an equitable basis[49].

In Apicella v. Italy, judgment of 10.11.2004, the ECHR lays down the general principles to be followed in the calculation of the amount, and specifically states that[50]: “As regards an equitable assessment of the non-pecuniary damage sustained as a result of the length of proceedings, the Court considers that a sum varying between EUR 1,000 and 1,500 per year’s duration of the proceedings (and not per year’s delay) is a base figure for the relevant calculation. The outcome of the domestic proceedings (whether the applicant loses, wins or ultimately reaches a friendly settlement) is immaterial to the non-pecuniary damage sustained on account of the length of the proceedings. The aggregate amount will be increased by EUR 2,000 if the stakes involved in the dispute are considerable, such as in cases concerning labour law, civil status and capacity, pensions, or particularly serious proceedings relating to a person’s health or life. The basic award will be reduced in accordance with the number of courts dealing with the case throughout the duration of the proceedings, the conduct of the applicant – particularly the number of months or years due to unjustified adjournments for which the applicant is responsible – what is at stake in the dispute – for example where the financial consequences are of little importance for the applicant – and on the basis of the standard of living in the country concerned. A reduction may also be envisaged where the applicant has been only briefly involved in the proceedings, having continued them in his or her capacity as heir.”

Furthermore, a new factor was introduced in two Greek cases, namely Arvanitaki-Roboti and Others v. Greece (91 applicants) and Kakamoukas and Others v. Greece (58 applicants) [GC], judgments of 15.02.2008, which is that the number of participants in a proceeding reduces the sum awarded for non-pecuniary damage. In particular, the ECtHR held that Where common proceedings have been found to be excessively long, the Court must take account of the manner in which the number of participants in such proceedings may influence the level of distress, inconvenience and uncertainty affecting each of them. Thus, a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage. Such an approach is based on the fact that the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis.”

Moreover, the importance of this factor was underlined by Vice-President Mr. Bratza, an opinion shared by Vice-President Mr. Rozakis, who noted that: “(…) However, where, as in the present case, the complaint of undue length of proceedings is made by a large number of parties to the same set of civil proceedings, a further consideration comes into play, namely the proportionality of the overall award. Although it is the Convention right of each individual which is found to have been violated, the total amount of the award under Article 41 should not be out of all proportion to the nature and seriousness of the violation found in the case, including the fact that the violation found relates to the excessive length of a single set of proceedings. The importance of upholding this principle justifies the making of a substantial reduction in the amount which would have been awarded to each applicant, had he or she been the only party, or one of a small number of parties, to the proceedings.”

However, great concern is voiced by Judge Zupančič and Judge Zagrebelsky on the way that the sum for non-pecuniary damage is generally calculated, this voice of dissent points out that: “(…) That being said, we would add that it is understandable that the Court was concerned by the sheer scale of the amounts in question if they were not to be reduced. In our opinion, however, this is the inevitable consequence of several questionable aspects of the Court’s practice with regard to the application of Article 41 in the event of a violation of the right to a reasonable length of proceedings. These range from an almost automatic assumption that non-pecuniary damage has been sustained, without the requirement of any evidence or argument, and the use of mathematical calculation criteria which take into account the entire length of the proceedings, even the period recognised as justified, to the use in this area of scales which are unrelated to the Court’s practice concerning violations which cause considerably greater suffering to the victims (Articles 2, 3, 8, 10, etc.)”.

For example, in Kontogeorgas v. Greece judgment of 21.02.2008, a case concerning an action for damages instituted before the civil courts and which lasted thirteen (13) years and eight (8) months for three instances of jurisdiction, the ECtHR awarded the applicant, for non-pecuniary damages suffered, the amount of 14,000 Euros. Furthermore, in the case Loukas v. Greece judgment of 29.05.2008, a case concerning proceedings brought before the Administrative Courts which lasted eleven (11) years and three (3) months for three instances of jurisdiction, for which the amount of 10,000 Euros was awarded. Finally in Aggelopoulou v. Greece judgment of 04.12.2008, which was a case concerning the offence of libel before criminal courts, which lasted five (5) years and seven (7) months for one instance of jurisdiction, the amount of 7, 000 Euros was awarded.

Finally, regarding costs and expenses in Greek cases, the awarded amount ranges from 500 Euros to 2,000 Euros, while usually the amount of 1,500 euros is awarded. The Court reiterates in many cases that costs and expenses will not be awarded under Article 41, unless it is established that they were actually and necessarily incurred and were also of a reasonable amount[51].

IV. Remedies to redress the violation of the right to be tried within a reasonable time

Ubi Jus ibi remendium: When there is a right, there should be a remedy.

At European level[52], as far as the right of reasonable time and the pursuit of appropriate measures provided to redress the violation are concerned, various views have been expressed and various measures have been taken into account ex officio by the court or at the request of an applicant. In some countries these measures have been incorporated into legislation[53], whereas in others it appears to have been set out or developed through their case-law[54].

Measures, aiming at the restitutio in integrum of the prejudice suffered, are preferred. In criminal proceedings, such measures are the reduction or mitigation of sentence, the discontinuation of proceedings, and acquittal of the accused person or discharge from punishment (e.g. deprivation of political rights). With respect to civil and administrative proceedings, such measures are applicable only to pending proceedings and consist of an acceleration of the remainder of the proceedings.

The mere award of an amount for pecuniary or non-pecuniary damage sustained, which is the most common measure applicable to civil and administrative proceedings, is a measure offered a posteriori, and therefore cannot be considered to fully restore the damage that the party sustained. However, as mentioned above, the amount of pecuniary compensation awarded should be adequate and sufficient and conform to the jurisprudence of the ECtHR. Otherwise, the damages would not amount to true reparation of the violation.

 

Possibilities and challenges within Greek legal system:

a. Reasonable time as a reason for reducing sentences

This is widely accepted by the legal systems of many European countries such as Germany, Belgium, Estonia, Finland, Iceland, the Netherlands and the United Kingdom. It is also accepted by the ECtHR[55] as well as the body of Greek theory[56].

In the Greek legal order, exceeding reasonable time could – with the sole purpose of achieving a fair trial – actually be a mitigating factor, indirectly provided by Article 84 § 2 of the Penal Code (hereinafter “PC”), to be taken into account at the stage of assessment of the sentence and thus reducing it to the lower limit provided by  law[57].

Article 84 § 1 of the PC provides the following: “The penalty is also reduced to the extent provided in the previous article and where the court finds that there are mitigating circumstances’’.

Furthermore, Article 84 § 2 of the PC reads as follow: “Mitigating circumstances are particularly….”. From the proper (legal) form of this provision and more specifically from the use of the term “particularly”, it follows that the list of mitigating circumstances by law is illustrative. Therefore, there is a distinction between known mitigating circumstances listed by name under the law – namely, a) the prior honest, individual, family, professional and social life of the offender in general terms, b) committing an act due to non humble causes or destitution, c ) the offender being forced to act due to the misconduct of the victim, d) demonstration of sincere remorse by the offender and the pursuit of eliminating or reducing the consequences and finally e) the proper conduct of the offender for a relatively long period of after committing the act – and anonymous mitigating circumstances which should be determined according to the specific circumstances of each case.

So, according to the above, in the case that a degradation of the defensive rights of the accused means unfair criminal proceedings, the accused is then provided the right to request a reduced sentence, citing a violation of Article 6 § 1 of the ECtHR, in that the case was no examined within a reasonable time in conjunction with Articles 83, 84 § 2 of the PC[58]. Then, the national courts on the one hand have a duty to go through the acknowledgement of non-reasonable time for the procedure and on the other hand to reduce the sentence which should be sufficient and implicit – with duly motivated judgment – so that the purpose of reducing the sentence is compensation of the applicant who suffered damage due to the excessive length of the proceedings. It would also be appropriate for the judgment to state what penalty would be imposed in the absence of compensation for the excessive length of proceedings. In the event that these two conditions are met, the defendant then ceases to have the capacity of a victim (victim status)[59].

b. A reasonable time as a reason for discontinuation of criminal proceedings

Acknowledgement of the excessive length of a case adjudicate (absolute) as a procedural bar to proceedings[60] under the Greek legal system is based essentially on the obvious sociological factor regarding the deterioration of the criminal phenomenon over time. A long duration, from the actual date of the crime until the time when punishment is enforced, weakens the purpose of such a punishment and makes it unworthy of being imposed.

This option is used only in “exceptional cases”, in particular by the courts of the Netherlands, Switzerland and Germany. The English courts apply the measure only in certain circumstances; however, it is necessary to establish that the delay is solely due to the conduct of the judiciary. Furthermore, even in such a case, the defendant must prove that the delay affected the fairness of the trial and therefore damage was incurred. However, the trial is not annulled if the results of its unfairness can be rectified during its duration. Similarly, the Belgian courts accept that for the trial to be abolished the presentation of evidence or the defensive rights of the accused must have been affected[61].

The way that the Supreme Court of New Zealand treats the excess of reasonable time is remarkable. Among other matters it held in Russel v. Steward (1988) BCL 1981 and Watson v. Clarke (1988) BCL 1980 that: The excessive delay in the administration of justice could constitute an abuse of process, depending on the circumstances of the case. If the delay is such that it can be viewed a failure or be presumed as having a negative effect on the fairness of the proceedings (the existence of such depends on the nature of the case) then this is deemed to be abuse and the court must acquit the accused person. The implicit damage is caused in cases where clear evidence of deterioration is apparent.

c. Reopening of the procedure under Article 525 para. 1 subsection 5 of the CPP (Code of Penal Procedure)

Finally, in recent years many State Parties have gone to retrial before national – particularly criminal – courts following a judgment of the ECtHR, which holds violation of the Convention[62]. The repetition of this process plays a prominent role in the enforcement of judgments of the ECHR. In many cases it is the only effective restorative measure (restitutio in integrum) against the adverse breaches of the Convention.

Article 525 par. 1 subsection 5 of the CCP[63] states the following: “A criminal process which was completed by a final decision is repeated in the interest of the sentenced for a misdemeanor or felony only (in the following situations): (…) 5) If a decision of the European Court of Human Rights found violation of the right to fairness of the procedure or substantive provision applied”.

So, from the proper wording of this provision it follows that the accused person, in the event of the violation of any right which is a component of a fair trial including the right to trial within a reasonable time – as mentioned above this right is a safety net for the fairness of the proceedings, has the ability to request the reopening of the proceedings and to request that the court resumes the procedure, taking appropriate measures to remedy the damage suffered by the defendant through the infringement

However, the Court of Cassation in judgment no. 1638/2002[64] rejected a retrial request following a Strasbourg judgment against Greece on the grounds of excessive length of proceedings and stated the following: “The repetition of the procedure is under the provision that the observed violation of the applicant’s right affected the judgment of the criminal court, particularly in a negative way, whereas the compensation for damage to the applicant can be achieved by repeating the process. The application which referred to the excessive length of criminal proceedings is inadmissible because it does not follow that exceeding the reasonable time of proceedings … had a negative impact on the judgment of the criminal courts that sentenced him for murder with intent … in addition exceeding the reasonable time is already an accomplished fact which cannot be retrospectively refuted. Furthermore, the Court of Cassation with its judgment (no. 717/2004)[65], on a similar case, extends the above line of thought as follows: “The desire of the applicant to have mitigating circumstances recognized in order to be awarded a reduced punishment, through repetition of procedure, is not related to the duration of the criminal proceedings and to the cause of the applicant’s failure.”

It is obvious that in cases where there has been a violation of the right to trial within a reasonable time, it is impossible through repetition of the procedure to achieve restoration of the violation itself i.e. the adjudication within a reasonable time.

However, the Court of Cassation, acknowledges the above with jurisprudential construction, which limits the scope of Article 525 § 1 subsection 5 CPC quite arbitrarily and without any legal basis, excluding in this way the concept of reasonable time from the fair nature of the proceedings, although as mentioned above, the right to a fair trial within a reasonable time is a safety net for the fairness of a trial as a whole and surpasses the purpose of the legislature, excluding the defendant from the restoration of any damage he has sustained by any means (for example, the reduction of sentence or acquittal).

Finally, under Article 58 of the Draft Law of the Code of Civil Procedure, such a measure is also provided in civil procedures, and establishes that the finding of a breach of fair trial by the ECtHR, constitutes a new foundation for the reopening of a case.

V. Conclusion

The right presented in this article appears as an aspect of the broader fundamental right to a fair trial. Therefore, it is accepted by the Court of Cassation, which is the highest appellate court in our country. However, the real consequences of the violation of the right of trial within a reasonable time are not only harmful but often disastrous to the party. Consequently, the damage that the party suffered cannot be restored by the pecuniary satisfaction awarded by the ECtHR nor by the exclusion from the Greek Court of Cassation that the violation of this right does not affect the fairness of the proceedings. The State needs to seek full remedial measures for the victims of the breach. This is the only way that the obligation of real and effective consideration of the violated right will be achieved. It is never too late…

 

 

 

[1]. The statistics cited above are available on the European Court of Human Rights, www.echr.coe.int, referring the decade 1.11.1998-31.12.2008.

[2]. Michele de Salvia, Compendium de la CEDH, Vol.1. Jurisprudence 1960 à 2002 , Ν.P. Engel, Kehl, Strasbourg, Arlington, Va, p. 346

[3]. ECtHR, Eckle v. Germany, judgment of 15 July 1982, § 73, Proios v. Greece, judgment of 24 November 2005, §15

[4]. ECtHR, Vlachos v. Greece judgment of 18 September 2008, § 16

[5]. ECtHR, Diamantides v. Greece judgment of 23 October 2003, § 20

[6]. ECtHR, Angelov v. Greece judgment of 6 November 2008, § 15

[7]. ECtHR, Aggelopoulou v. Greece judgment of 4 December 2008, §§ 14, 15

[8]. ECtHR, Gorou v. Greece (no.1) judgment of 31 July 2008, §14, See. Ipp. Milonas, The Criminal “Fair Trial” at the case-law of the European Court of Human Rights, Publisher: Ant.N. Sakkoulas, pp. 272-274

[9]. Peter van Dijk, Fried van Hoof, Arjen van Rijn, Leo Zwaak (eds.) (2006), Theory and Practice of the European Convention on Human Rights, 4th edition, Antwerpen-Oxford: Intersentia, pp. 604-605

[10]. ECtHR, Ichtigiaroglou v. Greece judgment of 19.06.2008, The Court considered that the relevant time began on the date that the applicant brought proceedings before the Local Administrative Committee of Social Security Services, since this was a prerequisite for bringing proceedings before the Administrative Courts, ECtHR, Vilho Eskelinen and Others v. Finland, judgment 19.04.2007, §66

[11]. ECtHR, Pafitis and others v. Greece judgment of 26.02.1998, § 95

[12]. ECtHR, Kouroupis v. Greece judgment of 27.03.2008,

[13]. Karen Reid (2008), A Practitioner ’s guide to the European Convention of Human Rights, Sweet & Maxwell, pp. 162-163, Μetzger v. Germany judgment of 31.05.2001

[14]. ECtHR, Karanikas v. Greece judgment of 29.04.2008

[15]. ECtHR, Ladas v. Greece judgment of 21.02.2008

[16]. ECtHR, Examiliotis v. Greece, (no. 3) judgment of 4.12.2008

[17]. ECtR, Korfiatis v. Greece judgment of 20.03.2008

[18]. ECtHR, Ottomani v. France judgment of 15.10.2002

[19] ECtHR, Terzoglou v. Greece judgment of 27.03.2008, §17

[20]. F. Calvez, Judge (France), Report, «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, Council of Europe (2007), p.83

[21]. ECtHR, Selmouni v. France [GC], no. 30210/96, §152, ΕCHR 2000-ΧΙ), Dim. και Aik. Tzivani Ο.Ε v. Greece judgment of 27.03.2008, § 12

[22]. ECtHR, Petroulia v. Greece judgment of 6.11.2008

[23]. K. Reid, οp. cit., p. 162

[24]. Marialena Tsirli, Dikaiorama (legal journal) 14 (March 2008), p.26.

[25]. Frydlender v. France [GC], no. 30979/96, par. 43, ECHR 2000-VII, Pélissier et Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II.

[26]. ECtHR, Wejrup v. Denmark, judgement of 7.03.2002 concerning a case of fraud; Karvoutzis v. Greece judgment of 6.11.2008, where the ECtHR held that given the nature of the dispute and in particular the number of owners of expropriated property, the case was undoubtedly complex; Papathanasiou v. Greece judgment of 5.02.2004, in which there were suspicions that the applicant belonged to a group charged with smuggling, forgery and use of counterfeit, and the contested proceedings were conducted along with seventeen other procedures which dealt with similar activities; Sari v. Turkey and Denmark judgment of 8.11.2001, a case concerning murder by a Turk in Denmark and there was need for translation in two languages; Geromanolis and Others v. Greece 16.10.2008, where the ECtHR held that the Supreme Administrative Court had to rule on other cases before considering the issues raised by these cases, which therefore caused delays in the proceedings; Chatzimanikas v. Greece judgment of 31.07.2008, in which five decisions were issued by the courts, two of which were issued by the Court of Cassation, Dganzov v. Bulgaria judgment of 8 July 2004, etc.

[27]. ECtHR, Lechner et Hess v. Austria judgment of 23.04.1987, série A no. 118, p. 19, § 49

[28]. ECtHR, Dim. and Aik. Tzivani Ο.Ε v. Greece judgment of 27.03.2008

[29]. The Greek cases before Strasbourg, vol. Α΄, 1991-2001, Publisher: Ant. Ν. Sakkoula, p. 219

[30]. Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000-IV, Dali v. Greece judgment of 6.11.2008, §31

[31]. ECtHR, Blake v. the United Kingdom judgment of 26.09.2006, § 45

[32]. ECtHR, Litoselitis v. Greece judgment of 5 February 2004, § 30,

[33]. ECtHR, Agathos and Others v. Greece judgment of 23.09.2004, § 23, Dali v. Greece, οp. cit, §30

[34]. ECtHR, Papageorgiou v. Greece judgment of 22.10.1997, Tsilira v. Greece, judgment of 22.05. 2008, § 15

[35]. Union Alimntaria Sanders SA v. Spain judgment of 7 July 1989, S F. Calvez, Judge (France), op. cit. p. 53, Relevant application, Loulakis v. Greece, appl. no. 58821/09, was lodged before ECHR, on 22.10.2009, due to the considerable distance between applicant’s residence and the competent Court of Appeal.

[36]. F. Calvez, Judge (France), op.cit. p. 49-76

[37]. Frédéric Edel, «The length of civil and criminal proceedings in the case-law of the European Court of Human Rights», Human Rights file, No. 16, Strasbourg (1996-2007), Council of Europe, p.43 et seq.

[38]. Panayotis Voyatzis, ECtHR Judgments, Synigoros (“Counsel”, legal journal) , issue 74, p. 63

[39]. ΕCtHR, Katte Klitsche de la Grange v. Italy judgment of 27 October 1994, § 61

[40]. The protection of Human Rights in Europe (2006), Athens Bar Association, p. 65

[41]. Νοmiko Vima 54 (legal Journal) (2006), p. 1842, with commentary by V. Chirdaris

[42]. Νοmiko Vima 57 (legal Journal) (2009), p. 1236, with commentary by E. Salamoura

[43]. Arg. Karras, Penal Procedural Law, Publisher: Ant. N. Sakkoulas, Ph. Papadopoulos (1995), Delay of penal procedure and the ECHR, Iperaspisi, (‘Defence’, legal journal) p. 189

[44]. ECtHR, Nideröst-Huber v. Switzerland judgment of 18 February 1997,§ 30; mutatis mutandis, Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A, p. 17, § 66.

[45]. The Greek cases before Strasbourg, op.cit., p. 211

[46]. Ph. Papadopoulos, op.cit., p.187

[47]. ECtHR, Capuano v. Italy judgment of 25 May 1987, § 37

[48]. ECtHR, Papastefanou v. Greece, judgment of 20 March 2008, § 24

[49]. ECtHR, Guzzardi v. Italy, judgment of 6 November 1980, série A no 39, p. 42, § 114

[50]. Frédéric Edel, «The length of civil and criminal proceedings in the case-law of the European Court of Human Rights», Human Rights file, No. 16, Strasbourg (1996-2007), Council of Europe, pp.93-100, on p.97.

[51]. Iatrides v. Greece (just satisfaction), [GC], no. 31107/96, § 54, CEDH 2000-XI

[52]. European Commission for Democracy through law (Venice Commission), «Report on the Effectiveness of national remedies in respect of excessive length of proceedings», adopted by the Venice Commission at its 69th Plenary Session, Venice 15-16 December 2006, Council of Europe

[53]. Andorra, Austria, Bosnia and Herzegovina, Bulgaria, Czech Republic, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia, Lithuania, Luxembourg, Montenegro, Netherlands, Norway, Poland, Portugal, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Ukraine.

[54]. For example: by the Courts of Estonia, Germany, Netherlands, Switzerland etc.

[55]. Εckle v. Germany judgment of 15 July 1982

[56]. I. Anagnostopoulos, «Violation of the right of the fair trial», Poinika Chronika (“Penal Chronicals “legal journal), p. 5 et seq., D. Spinellis, “The reasonable time of the criminal proceedings”, Nomiko Vima (legal Journal) 1998, p. 1583, L. Kotsalis – G. Triantafyllou (eds.), Human Rights and Criminal Law, Publisher: Ant. N. Sakkoulas, Athens-Komotini (2007), p. 148, K. Chrysogonos, «The reopening of criminal proceedings following a judgment of the ECtR”, Nomiko Vima (legal journal) 2001, p. 1112 et seq., Ιp. Milonas, «The importance of the case-law on the right of the fair trial, for the Greek criminal procedure”, Poinika Chronika (“Penal Chronicals “legal Journal”) p. 805 et seq., V. Chirdaris οp.cit p. 1843, Ph. Papadopoulos, op. cit., p. 183 et seq. The same issue is dealt with in judgment no. 1454/1997 of the Court of Cassation (Nomiko Vima 1998, with commentary by Chr. Argyropoulos), which rejected the grounds of appeal of the cassation for not taking into account the mitigating element of the excessive length of proceedings for the reason that it was obvious from the minutes of the proceedings that the submission of such an independent claim indirectly accepted the possibility of submission.

[57]. Nomiko Vima 54 (2006), with commentary by V. Chirdaris, op.cit., p.1842

[58]. L. Kotsalis – G.Triantafyllou (eds.), οp. cit. p.148

[59]. Stefan Trechsel (2006), Human Rights in Criminal Proceedings, Oxford, p. 148

[60]. I. Anagnostopoulos, οp. cit. p. 3, L. Kotsalis – G.Triantafyllou (eds.), op. cit. p. 151, Ph. Papadopoulos, op. cit., p. 196

[61]. European Commission for Democracy through law (Venice Commission), op.cit, p. 21

[62]. Such an explicit provision is provided in at least fourteen other Contracting States (Austria, Denmark, Switzerland, France, Germany, Bulgaria, Croatia, Lithuania, Poland, Slovenia, Luxembourg, Malta, Chech Republic, Norway), For a detailed analysis, see K. Chrysogonos, «The reopening of criminal proceedings following a judgment of the ECtHR», Nomiko Vima 2001, p. 1110 et. seq.

[63]. Subsection 5 of par. 1 was added by article 11 of the Law No. 2865/2000 (Gazette A271) and come into force on 19.12.2000, see for the reopening of the proceedings (CPP par.1 subsection 5), I. Anagnostopoulos, op.cit., p. 6

[64]. Poinika Chronika (“Penal Chronicals “legal journal) (2003), p. 607 et seq.

[65]. Poinika Chronika (“Penal Chronicals“ legal journal) (2005), p.252, with information note by D. Christopoulos, p. 252


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