By Nora Jaber*
Rutkowski and Others v. Poland and Gazso v. Hungary are two pilot cases decided in July 2015 that highlight a major point of contention faced by the European Court of Human Rights (“ECtHR”): the right to be tried within a reasonable time as enshrined within Article 6(1) of the Convention. At the time of the Rutkowski judgement there were over another 650 similar cases pending before the ECtHR, and over 300 Polish cases pending before the Committee of Ministers at the execution stage.
This demonstrates the scale of the relevance of Article 6(1) to the Court’s jurisprudence today. In fact, it is the most contentious issue before the Court, and has been at the forefront of the Court’s caseload for a very long time. The Court has issued hundreds of judgments on Article 6(1) and has stressed the importance of minimising delays in order for justice to be delivered. Despite this, the problem of undue delays in proceedings persists and warrants attention.
It is said that ‘justice delayed is justice denied.’ Delays can and do compromise the effective administration of justice. An excessively long procedure can result in a weakening of the position of the accused by, for example, a deterioration of the quality of evidence or a loss of it. Such situations become more plausible the longer the duration of the trial procedure and should be avoided in order to ensure a proper administration of justice.
On the other hand, it is also claimed that ‘justice hurried is justice buried’. This means that while a speedy procedure is desirable in many cases, it may not be suitable in others. A reasonable time is one that strikes a balance between a speedy and a fair trial, since speed cannot always guarantee fairness. This is encapsulated within the Convention’s Article 6(3)(b). Adequate time can come in conflict with a speedy procedure, and because the provision exists in order to protect the accused, a reasonable period in such scenarios is not equivalent to a speedy trial. This is not an easy balance to strike.
Consequently, in determining whether a delay is reasonable, the Court follows a three step procedure. It examines the complexity of the case, the conduct of the applicant, and the conduct of the judicial and administrative authorities. In many cases it also assesses the prejudice the delay has caused to the individual applicant(s).
While there are clear advantages to the Court approaching Article 6(1) on a case-by-case basis, the large volume of such cases that continue to appear before the Court begs the question of whether the Court’s approach does effectively minimise delays. Should the Court continue to deal with these cases as it has done, or should be aim to remedy something deeper? Some States, such as Poland and Hungary, have a larger number of delay cases brought against them than other States. It is clear that in such States, cases brought under Article 6(1) cannot be regarded as ‘isolated incidents’. The continuing breaches of the right to be tried within a reasonable time reveal an underlying systemic flaw that must be addressed (Di Mauro v Italy) , and the pilot judgement procedure appears to be a key to solving this issue.
This is clearly depicted by the Rutkowski judgement in which the Court found that Poland had been in violation of the reasonable time requirement. In this case, Mr Rutkowski complained that criminal proceedings against him regarding suspicion of his participation in an organised crime group had been unduly delayed (charged in 2002 and acquitted in 2010). The other two applicants in the case complained about the length of civil proceedings. Mr Orliowski’s complaint concerned a claim for damages he had lodged against his landlord (1999-2010), while Ms Grabowska’s concerned rights to property she had inherited (2000-2013). Alongside their complaints of the delay itself, the applicants all complained that the Court had not properly measured the delay because it only took account of the period starting on the date in which a 2004 Act, providing for breaches in cases of undue delay, had been introduced.
Noting the number of similar cases that were pending before it, the Court decided that issuing a judgment on the matter based on the specific facts was not enough. A further step of monitoring the State’s subsequent measures was required in order to yield more effective results long-term. This would come in the form of legislative and administrative action, but the Court refrained from indicating any specific measures. However, it imposed a two year time limit on Poland for processing and offering redress (e.g. friendly settlements) to the victims of all subsequent applications. This interventionist measure is welcome considering the prevalence and persistence of delays. Pending Poland’s adoption of the measures, the Court adjourned similar cases during its two-year time limit.
A similar approach was taken in the Gazco judgment in which the Court also noted Hungary’s recurrent failure to prevent delays in proceedings before its courts. In this case, Mr. Gazco had complained that a delay of more than six years of litigation in a labour dispute had been excessive. He also complained that no appropriate remedy had been available to him to help speed up the proceedings. After finding the State in violation of the Convention, the Court again went a step further and sought to address the systemic problem underlying such delays. It noted that the Hungarian system did not offer any effective preventive remedies, nor did it offer any redress in such situations. Although the court again did not specify any measures to be taken, it allowed Hungary a maximum of one year to introduce an effective domestic remedy regarding excessive delays in civil proceedings, and again adjourned all similar cases during this period. The Court did indicate however that the State could choose between either a preventive measure to avoid delays and expedite proceedings, or a compensatory one, but displayed a preference for the former. It is not clear why the Court allowed one year to Hungary while it allowed Poland two years to implement such measures. Perhaps the larger volume of pending cases before Poland indicated a bigger problem in need of more time and contemplation.
The Court was correct to intervene to this extent once it realised that the case was not an isolated incident but the result of a systemic problem that needed to be amended. In fact, in 2014 alone, Hungary had been found in violation of the Convention concerning excessive delays of this nature in more than 24 cases.
In both these cases, the pilot judgment procedure is a step in the right direction as it is no secret that the ECtHR is overloaded with cases with similar fact patterns. It is hoped that by changing its focus to the underlying systemic problem rather than merely looking at the facts before and declaring a delay reasonable or excessive, the Court will eventually minimise the Article 6(1)-related cases that come before it.
* Nora Jaber is a Saudi Arabian LLB graduate from King’s College London, and is currently completing her LLM at the London School of Economics and Political Science. This post draws on research conducted as an Undergraduate Research Assistant to Dr. Philippa Webb at King’s College London.