Court Delay and Human Rights Remedies

Enforcing the Right to a Fair Hearing 'Within a Reasonable Time'

Caroline Savvidis

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317158851
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto comparato

This book brings legal and academic perspective to the theory and practice surrounding the right to a fair hearing within a reasonable time. This field of rights has been somewhat neglected academically, a fact which jars with the sheer volume of case law budding from this single, simple, fundamental right, bearing testimony to the widespread concern with delay in judicial proceedings which transcends the boundaries of states or legal systems.

The work provides a blueprint for analysing the effectiveness of legal remedies across entire legal systems, as well as in any given individual case. The first part focuses on deriving legal principles from the body of jurisprudence of the European Court of Human Rights in Strasbourg, while the second part contains illustrations of the practical application of such principles.

The content constitutes essential reading for students, academics, lawyers, judges, practitioners and all those who wish to understand the issue of delay in judicial proceedings, and the legal context of available remedies. The author aims to raise awareness about the human rights issues which come into play when delivery of justice is delayed, and to provide both an academic and practical reference.

1
Preliminary Pleas and Fundamental Concepts Relevant to Length-of-Proceedings Cases Brought Before the European Court of Human Rights

Chapter Introduction

The scope of this section is to analyse some of the preliminary pleas which are most commonly raised by respondent states, specifically in regard to applications based on the length of proceedings. In order to eventually analyse whether the remedies available in a given domestic system are ‘effective’ in terms of the Convention, as well as whether the redress afforded by national courts is sufficient by Convention standards, an understanding of the principles governing the Strasbourg Court’s assessment of the following two preliminary pleas is crucial.

1. ECHR Article 35(1): Exhaustion of domestic remedies¹
   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 months² from the date on which the final decision was taken.

   – ECHR Article 35 (admissibility criteria) sub-section 1
2. ECHR Article 35(3)³: Inadmissibility ratione personae and loss of victim status as per ECHR Article 34⁴
   The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

   – ECHR Article 34 (individual applications)
   The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

   • (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly illfounded, or an abuse of the right of individual application; or
   • (b) 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.

   – ECHR Article 35 (admissibility criteria) sub-section 3

The attention of the reader is drawn to the fact that the preliminary pleas examined in this Chapter are the ones most relevant to and most frequently raised in length-of-proceedings cases, but they are not the only preliminary pleas or considerations which need to be considered when filing or considering an application alleging a violation of Convention rights due to delay in judicial proceedings. A general understanding of all the preliminary concepts which any application claiming a violation of a Convention right should draw on would be beyond the focused scope of this study, where the author feels it is preferable to delve into those pleas in respect of which the case law of the Strasbourg Court in length-of-proceedings cases has reached a particular level of maturity in connection with the subject matter.

It is also worth noting that, aside from the two preliminary pleas enlisted above, since the introduction of Protocol 14 to the European Convention on Human Rights, another provision which seems to be playing a role of increasing relevance in a length-of-proceedings context is the newly amended limb of Article 35(3) which allows the Court to reject an examination where the applicant ‘has not suffered a significant disadvantage’. One such case was that of GAGLIANO GIORGI, where the respondent government successfully argued that the applicant had not suffered any significant disadvantage as envisaged in Article 35(3), on the basis that the delay in the relevant proceedings had actually allowed the applicant to benefit from a reduction in the penalty due to the time barring of the action for corruption. While noting that the introduction of this qualifying caveat stems from the desirability of implementing the principle of de minimis non curat praetor, so as to allow the Court to focus on alleged violations of a minimum threshold of severity, the Court has underlined that this threshold is relative, and depends on the circumstances of the case. It further noted in GAGLIANO GIORGI that the criteria it will consider when assessing whether an application for an alleged violation has reached this minimum level of severity include the nature of the right allegedly infringed, the impact of the alleged violation on the exercise of the right and/or the consequences of the violation on the personal situation of the applicant.⁵

Chapter 1 – Section 1 – Article 35(1) Exhaustion of (Effective) Domestic Remedies

Mifsud Bonnici observes that the sheer volume of length-of-proceedings cases has obliged the Strasbourg Court to stringently enforce the requirement of the exhaustion of national remedies.⁶

The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court … The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights.⁷

1.1.1 The general rules

The general rules regarding the exhaustion of domestic remedies are, in essence, the following. The applicant must first have recourse to those remedies at a domestic level which relate to his complaint. Only those remedies which are normally available and sufficient need be resorted to, and not every possible avenue of redress available. The applicant need not resort to remedies which are not certain, both in theory and in practice, or inadequate to redress his grievances. If the availability of the remedy is unclear then it will lack the requisite accessibility and effectiveness required.⁸ A remedy which requires exhaustion must be capable of directly remedying the state of affairs causing the violation, and must offer reasonable prospects of success. The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile, however, is not a valid reason for failing to exhaust that avenue of redress.⁹

These requirements are interlinked. In PARIZOV the plea of non-exhaustion of domestic remedies was dismissed since although there was a compensatory remedy available, the law was unclear as to which court had jurisdiction to take cognizance of the claim where the case was still ongoing, and, being a recently introduced remedy, there was no case law to clarify this point. In HORVAT¹⁰ the government’s preliminary plea regarding non-exhaustion of domestic remedies was also dismissed. The availability of the remedy in question was predicated upon the constitutional court’s decision to examine the complaint, and in order to achieve such a ruling the application had to satisfy two conditions: it had to be proved that a gross violation of constitutional rights had been incurred by reason of the absence of a decision within a reasonable time, and that there existed the risk of serious and irreparable consequences ensuing as a result of the delay. Only one case had ever been decided by the constitutional court, a fact which reaffirmed the uncertainty of the applicant’s legal position.

In essence, what is required of applicants is that they afford the state an opportunity to redress the violation by presenting the complaints intended to be made subsequently in Strasbourg to the appropriate domestic body, ‘at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used’.¹¹ The Court has demonstrated itself ready to apply this Convention requirement ‘with some degree of flexibility and without excessive formalism’, noting that it is essential to have regard to the particular circumstances of the case:

This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant.¹²

It is only remedies which qualify in accordance with the above enlisted criteria that require exhaustion in terms of Article 35(1). In the Grand Chamber ruling of VUČKOVIĆ AND OTHERS the Court further noted that:

In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective.

1.1.2 The burden of proof lies with the respondent state

The state must demonstrate how the remedy it alleges should have been exhausted was ‘an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success’.¹³ Only remedies which the state proves to be effective for the purposes of Article 13 need be exhausted for the purposes of Article 35. Such effectiveness is generally assessed by reference to other domestic decisions.¹⁴ As exemplified by the case of MERIT, emphasis is placed by the Court on the need for the government to demonstrate how the local remedies, which it pleads the applicant could have resorted to, are effective in practice.

The state must prove that the remedy offered the applicant reasonable prospects of success.¹⁵ This has been held to mean a genuine possibility of obtaining redress at domestic level in respect of their complaint. It is an objective test and can be assessed by reference to previous decisions of the court and the chances of success of the particular case.¹⁶ The need for proof of judicial precedent is not set in stone. In SLAVIČEK the Court declared the application inadmissible on the basis of non-exhaustion of domestic remedies after examining the wording of a new remedy introduced into national law a few days after the application to the Strasb...