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Study on the Effectiveness of National Remedies in Respect of Excessive Length of Proceedings

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Study on the Effectiveness of National Remedies in Respect of Excessive Length of Proceedings Strasbourg, 15 February 2007 CDL(2006)026 Study no. 316/ 2004 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) STUDY ON THE EFFECTIVENESS OF NATIONAL REMEDIES IN RESPECT OF EXCESSIVE LENGTH OF PROCEEDINGS REPLIES TO THE QUESTIONNAIRE This document will not be distributed at the meeting. Please bring this copy. http://venice.coe.int CDL(2006)026 - 2 - TABLE OF CONTENTS Page QUESTIONNAIRE 3 ALBANIA 5 ANDORRA 9 ARMENIA 14 AUSTRIA 16 AZERBAIJAN 19 BELGIUM 20 BOSNIA AND HERZEGOVINA 37 BULGARIA 40 CROATIA 42 CYPRUS 53 THE CZECH REPUBLIC 57 DENMARK 60 ESTONIA 65 FINLAND 68 FRANCE 70 GEORGIA 73 GERMANY 77 GREECE 80 HUNGARY 83 IRELAND 86 ITALY 96 LIECHTENSTEIN 99 LITHUANIA 108 LUXEMBOURG 114 MALTA 116 MOLDOVA 118 MONACO 123 MONTENEGRO 125 NETHERLANDS 126 NORWAY 131 POLAND 135 PORTUGAL 139 ROMANIA 142 RUSSIAN FEDERATION 150 SAN MARINO 154 SERBIA 156 SLOVAKIA 160 SLOVENIA 164 SPAIN 168 SWEDEN 171 SWITZERLAND 173 “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” 175 TURKEY 179 UKRAINE 181 THE UNITED KINGDOM 184 - 3 - CDL(2006)026 QUESTIONNAIRE 1. Does your country experience excessive delays in judicial proceedings? Which proceedings (civil, criminal, administrative, enforcement)? 2. Have such delays been acknowledged by court decisions? Which courts (national/European Court of Human Rights)? Please provide some examples in English or French or reference to ECHR case-law. 3. Does an explicit requirement of reasonableness of the length of the proceedings equivalent to that contained in Article 6 § 1 of the European Convention on Human Rights exist in the Constitution or legislation? 4. Is any statistical data available about the extent of this problem in your country? If so, please provide it in English or French. 5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what - ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French. 6. Is this remedy also available in respect of pending proceedings? How? 7. Is there a cost (ex. fixed fee ) for the use of this remedy? 8. What criteria are used by the competent authority in assessing the reasonableness of the duration of the proceedings? Are they the same as, or linked to, the criteria applied by the European Court of Human Rights in respect of Article 6 § 1 ECHR? 9. Is there a deadline for the competent authority to rule on the matter of the length? Can it be extended? What is the legal consequence of a possible failure by the authority to respect the deadline? 10. What are the available forms of redress: - acknowledgement of the violation YES/NO - pecuniary compensation o material damage YES/NO o non-material damage YES/NO - measures to speed up the proceedings, if they are still pending YES/NO - possible reduction of sentence in criminal cases YES/NO - other (specify what) 11. Are these forms of redress cumulative or alternative? 12. If pecuniary compensation is available, according to what criteria? Are these criteria the same as, or linked to, those applied by the European Court of Human Rights? Is there a maximum amount of compensation to be awarded? CDL(2006)026 - 4 - 13. If measures can be taken to speed up the proceedings in question, is there a link between these measures and the general case-management of the relevant courts? Is the taking of these measures co-ordinated at a central or higher level? On the basis of what criteria and what factual information concerning the court in question (workload, number of judges, nature of cases pending, specific problems etc.) does the competent authority order such measures? 14. What authority is responsible for supervising the implementation of the decision on the reasonableness of the duration of the proceedings? 15. What measures can be taken in the case of non-enforcement of such a decision? Please indicate these measures in respect of each form of redress and provide examples. 16. Is an appeal possible against a decision on the reasonableness of the duration of the proceedings? Is there a fixed time-frame for the competent authority to deal with this appeal? What would be the legal consequence of non-compliance with this time-limit? 17. Is it possible to use this remedy more than once in respect of the same proceedings? Is there a minimum period of time which needs to have elapsed between the first decision on the reasonableness of the length of the proceedings and the second application for such a decision? 18. Is there any statistical data available on the use of this remedy? If so, please provide it in English/French. 19. What is the general assessment of this remedy? 20. Has this remedy had an impact on the number of cases possibly pending before the European Court of Human Rights? Please provide any available statistics in this connection. 21. Has this remedy been assessed by the European Court of Human Rights in respect of Articles 13 or 35 ECHR? If so, please provide reference to the relevant case-law. - 5 - CDL(2006)026 ALBANIA 1. Does your country experience excessive delays in judicial proceedings? Which proceedings (civil, criminal, administrative, enforcement)? One of the endemic problems of the judicial system in Albania is the excessive delay in judicial proceedings. This problem in encountered in all kinds of proceedings, but is especially disquieting in civil law cases and especially in property restitution cases. 2. Have such delays been acknowledged by court decisions? Which courts (national/ European Court of Human Rights)? Please provide some examples in English or French or reference to ECHR case-law. Yes. Case-law of the European Court of Human Rights In Qufaj Co. Sh.P.K. v. Albania, (judgement of 18 November 2004), the Court considered that there had been a violation of Article 6 § 1 of the Convention because of the delay in the execution of a judgement. Following this judgement of the European Court of Human Rights, after more than 5 years of doctrinal debate, addressed this problem in the Albanian jurisprudence in its judgement no.6, of 31.03.2006. There are no other cases in the Albanian jurisprudence recognising expressly and redressing such problem of the Albanian judicial system. 3. Does an explicit requirement of reasonableness of the length of the proceedings equivalent to that contained in Article 6 § 1 of the European Convention on Human Rights exist in the Constitution or legislation? Article 42 § 2 of the Albanian Constitution reads as follows: “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 28 of the Albanian Constitution on its third paragraph provides that: “A person in pretrial detention has the right to appeal the judge's decision. He has the right to be tried within a reasonable period of time or to be released on bail pursuant to law.” Article 4 of the Albanian Civil Procedure Code provides that: “The court takes care for the due development of legal proceedings. On basis of authority given by this Code, the court decides on the time-periods and orders the necessary measures to be taken.” But the Code does not contain other provisions developing further this concept. CDL(2006)026 - 6 - The situation is quite identical with the Code of Criminal Procedure. Its Article 1 provides: “1. The main role of criminal procedural legislation is to provide a fair, equal and due legal process, to protect the individuals' freedoms, the rights and the legal interests of the citizens, to contribute to the strengthening of the rule of law and to the application of the Constitution and laws ruling the country.” Further on there are different provisions providing for time-limits but this concept applies in mainly to the parties before the court than to the court itself. There are no provisions in the Code limiting the power of the judges to delay the proceedings. A proposal to include in the Criminal Procedure Code fixed deadlines for the judicial proceedings was not endorsed by the Legal Reform Commission in December 2006. 4. Are any statistical data available about the proportions of this problem in your country? If so, please provide them in English or French. According to the Albanian Ministry of Justice Statistical Yearbook for 2005 in criminal cases 3161 judgements are delivered within 2 months, 2089 judgements within 6 months, 646 judgements within one year and 165 judgements take more than one year. In 2005, from 7871 criminal cases, 6061 are concluded and 1810 are unresolved. In 2005 they have been resolved 58% of civil proceedings. Have been resolved also 30% of family law proceedings, 11% of administrative law proceedings and 1% of commercial law proceedings. According to this Yearbook 37951 cases are resolved within 2 months, 7415 within 6 months and 5987 require more than 6 months time. 5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what - ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French. The Albanian legal system affords a remedy in the form of an application to the Constitutional Court complaining of a breach of the right to a fair trial. Article 131 of the Constitution provides that: “The Constitutional Court shall decide in: (f) final adjudication of the complaints by individuals for the violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” The European Court of Human Rights holds that the fair trial rules in Albania should be interpreted in a way that guaranteed an effective remedy for an alleged breach of the requirement under Article 6 § 1 of the Convention.
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