Proceedings Delay [ECHR]

Table of Contents

Length of Proceedings

Article 6 § 1 of the Convention
“1. In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] tribunal …”

In requiring cases to be heard within a “reasonable time”, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (H. v. France, 1989, § 58; Katte Klitsche de la Grange v. Italy, 1994, § 61). Article 6 § 1 obliges the Contracting States to organise their legal systems so as to enable the courts to comply with its various requirements.

The Court has repeatedly stressed the importance of administering justice without delays which might jeopardise its effectiveness and credibility (Scordino v. Italy (no. 1) [GC], 2006, § 224). Where the Court finds that in a particular State there is a practice incompatible with the Convention resulting from an accumulation of breaches of the “reasonable time” requirement, this constitutes an “aggravating circumstance of the violation of Article 6 § 1” (Bottazzi v. Italy [GC], 1999, § 22; Scordino v. Italy (no. 1) [GC], 2006,§ 225). For the length of execution proceedings, see section on “Execution of judgments”.

Determination of the length of the proceedings

As regards the starting-point of the relevant period, time normally begins to run from the moment the action was instituted before the competent court (Poiss v. Austria, 1987, § 50; Bock v. Germany, 1989, § 35), unless an application to an administrative authority is a prerequisite for bringing court proceedings, in which case the period may include the mandatory preliminary administrative procedure (Kress v. France [GC], 2001, § 90; König v. Germany, 1978, § 98; X v. France, 1992, § 31; Schouten and Meldrum v. the Netherlands, 1994, § 62).

Thus, in some circumstances, the reasonable time may begin to run even before the issue of the writ commencing proceedings before the court to which the claimant submits the dispute (Vilho Eskelinen and Others v. Finland [GC], 2007, § 65; Golder v. the United Kingdom, 1975, § 32 in fine; Erkner and Hofauer v. Austria, 1987, § 64). However, this is exceptional and has been accepted where, for example, certain preliminary steps were a necessary preamble to the proceedings (Blake v. the United Kingdom, 2006, § 40). For the case of a civil-party claim, see Nicolae Virgiliu Tănase v. Romania [GC], 2019, §§ 207-208; Arnoldi v. Italy, 2017, §§ 25-40; and Koziy v. Ukraine, 2009, § 25).

Article 6 § 1 may also apply to proceedings which, although not wholly judicial in nature, are nonetheless closely linked to supervision by a judicial body. This was the case, for example, with a procedure for the partition of an estate which was conducted on a non-contentious basis before two notaries, but was ordered and approved by a court (Siegel v. France, 2000, §§ 33-38). The duration of the procedure before the notaries was therefore taken into account in calculating the reasonable time.

As to when the period ends, it normally covers the whole of the proceedings in question, including appeal proceedings (König v. Germany, 1978, § 98 in fine), and thus both interim and final decisions (Mierlă and Others v. Romania (dec.), 2022, § 78). It extends right up to the decision which disposes of the dispute (Poiss v. Austria, 1987, § 50). Hence, the reasonable-time requirement applies to all stages of the legal proceedings aimed at settling the dispute, not excluding stages subsequent to the judgment on the merits (Robins v. the United Kingdom, 1997, §§ 28-29), meaning that the final determination of costs and expenses may be covered within the period under examination (Čičmanec v. Slovakia, 2016, § 50).

The execution of a judgment, given by any court, is therefore to be considered as an integral part of the proceedings for the purposes of calculating the relevant period (Martins Moreira v. Portugal, 1988, § 44; Silva Pontes v. Portugal, 1994, § 33; Di Pede v. Italy, 1996, § 24). Time does not stop running until the right asserted in the proceedings actually becomes effective (Estima Jorge v. Portugal, 1998, §§ 36-38).

Where the pronouncement of a decision at a public hearing and the drafting of the full text of the decision take place at separate times, the proceedings are not deemed to have been completed until the final reasoned decision is deposited at the registry of the the court that gave it, or until the parties concerned are notified of the decision, including where a lengthy period elapses between the pronouncement of the decision and its notification to the parties (Mierlă and Others v. Romania (dec.), 2022, §§ 78 and 82).

Proceedings before a Constitutional Court are taken into consideration where, although the court has no jurisdiction to rule on the merits, its decision is capable of affecting the outcome of the dispute before the ordinary courts (Deumeland v. Germany, 1986, § 77; Pammel v. Germany, 1997,
§§ 51-57; Süßmann v. Germany, 1996, § 39). Nevertheless, the obligation to hear cases within a reasonable time cannot be construed in the same way as for an ordinary court (ibid., § 56; Oršuš and Others v. Croatia [GC], 2010, § 109). 39

Lastly, as regards the intervention of third parties in civil proceedings, the following distinction should be made: where the applicant has intervened in domestic proceedings only on his or her own behalf the period to be taken into consideration begins to run from that date, whereas if the applicant has declared his or her intention to continue the proceedings as heir he or she can complain of the entire length of the proceedings (Scordino v. Italy (no. 1) [GC], 2016, § 220).

Reasonable Time Principles

Obligation on member States: they are required to organise their judicial systems in such a way that their courts are able to guarantee everyone’s right to a final decision on disputes concerning civil rights and obligations within a reasonable time (Comingersoll S.A. v. Portugal [GC], 2000, § 24; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 142).

Assessment in the specific case: The reasonableness of the length of proceedings coming within the scope of Article 6 § 1 must be assessed in each case according to the particular circumstances (Frydlender v. France [GC], 2000, § 43), which may call for a global assessment (; Comingersoll S.A. v. Portugal [GC], 2000, § 23; Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 214; Obermeier v. Austria, 1990, § 72).

The whole of the proceedings must be taken into account (König v. Germany, 1978, § 98 in fine).

While different delays may not in themselves give rise to any issue, they may, when viewed together and cumulatively, result in a reasonable time being exceeded (Deumeland v. Germany, 1986, § 90). Thus, although the length of each stage of the proceedings (approximately one and a half years) might not be considered unreasonable as such, the overall duration may nonetheless be excessive (Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 2017, §§ 210-11).
A delay during a particular phase of the proceedings may be permissible provided that the total duration of the proceedings is not excessive (Pretto and Others v. Italy, 1983, § 37).
The national authorities may have remained active throughout the proceedings, with delays being caused by procedural defects (Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 213).
“Long periods during which the proceedings … stagnate” without any explanations being
forthcoming are not acceptable (Beaumartin v. France, 1994, § 33).

The assessment of whether the time taken was reasonable may also have regard to the special characteristics of the proceedings in question (see Omdahl v. Norway, 2021, §§ 47 and 54-55, concerning the division of a deceased person’s estate between the heirs, which took more than twenty-two years).

The restrictions necessitated by a pandemic, such as the COVID-19 health crisis, may have an adverse effect on the processing of cases by the domestic courts (Q and R v. Slovenia, 2022, § 80), although this cannot in principle release the State from all responsibility for the excessive length of the proceedings in question.

The applicability of Article 6 § 1 to preliminary proceedings or interim measures, including injunctions, will depend on whether certain conditions are fulfilled (Micallef v. Malta [GC], 2009, §§ 83-86).40

Proceedings for a preliminary ruling from the Court of Justice of the European Union (CJEU) are not taken into consideration in the assessment of the length of time attributable to the domestic authorities (Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 2017, § 208; Pafitis and Others v. Greece, 1998, § 9541).

If the State has introduced a compensatory remedy for breaches of the reasonable-time principle and the remedy, examined as a whole, has not caused the applicant to lose “victim” status for the purposes of Article 34 of the Convention, this constitutes an “aggravating circumstance” in the context of a violation of Article 6 § 1 for exceeding a reasonable time (Scordino v. Italy (no. 1) [GC], 2006,
§ 225).

Reasonable time Criteria

The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and in accordance with the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (Comingersoll S.A. v. Portugal [GC], 2000; Frydlender v. France [GC], 2000, § 43; Sürmeli v. Germany [GC], 2006, § 128; Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 143; Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 209). The Bieliński v. Poland judgment, 2022, summarised the applicable case-law principles (§§ 42-44).

Complexity of the case

The complexity of a case may relate both to the facts and to the law (Papachelas v. Greece [GC], 1999, § 39; Katte Klitsche de la Grange v. Italy, 1994, § 55). It may relate, for instance, to the involvement of several parties in the case (H. v. the United Kingdom, 1987, § 72) or to the various items of evidence that have to be obtained (Humen v. Poland [GC], 1999, § 63). A case may be legally complex because of the scarcity of precedents at national level, or the need to seek a ruling from the CJEU on questions relating to the interpretation of European law (Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 2017, § 212).

In Nicolae Virgiliu Tănase v. Romania [GC], 2019, proceedings involving a civil-party claim were of “considerable factual complexity”, which had increased because of the many expert reports required (§ 210) – with regard to expert reports, compare with Q and R v. Slovenia, § 79, 2022.

The complexity of the domestic proceedings may explain their length (Tierce v. San Marino, 2003, § 31). However, while acknowledging the complexity of insolvency proceedings, the Court has found that a duration of approximately twenty-five years and six months did not satisfy the “reasonable time” requirement (Cipolletta v. Italy, 2018, § 44).

Even if the case in itself is not a particularly complex one, the lack of clarity and foreseeability in the domestic law may also render its examination difficult and contribute decisively to extending the length of the proceedings (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 150).

The applicant’s conduct

Article 6 § 1 does not require applicants actively to cooperate with the judicial authorities, nor can they be blamed for making full use of the remedies available to them under domestic law (Erkner and Hofauer v. Austria, 1987, § 68) or for consequences linked to their medical condition (Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 211). Nevertheless, the national authorities cannot be held accountable for any resulting increase in the length of the proceedings (ibid.).

The person concerned is required only to show diligence in carrying out the procedural steps relating to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings (Unión Alimentaria Sanders S.A. v. Spain, 1989, § 35). The Court will consider the impact of such requests on the length of proceedings (Q and R v. Slovenia, 2002, § 78).

Applicants’ behaviour constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Article 6 § 1 has been exceeded (Poiss v. Austria, § 57; Wiesinger v. Austria, 1991, § 57; Humen v. Poland [GC], 1999, § 66). An applicant’s conduct cannot by itself be used to justify periods of inactivity.

Some examples concerning the applicant’s conduct:

a lack of alacrity by the parties in filing their submissions may contribute decisively to the slowing-down of the proceedings (Vernillo v. France, 1991, § 34);
frequent/repeated changes of counsel (König v. Germany, 1978, § 103);
requests or omissions which have an impact on the conduct of the proceedings (Acquaviva v. France, 1995, § 61), or lack of diligence in carrying out procedural steps (Keaney v. Ireland, 2020, § 95); see also Sürmeli v. Germany [GC], 2006, § 131;
an attempt to secure a friendly settlement (Pizzetti v. Italy, 1993, § 18; Laino v. Italy [GC], 1999, § 22);
proceedings brought erroneously before a court lacking jurisdiction (Beaumartin v. France, 1994, § 33);
litigious behaviour as evidenced by numerous applications and other claims (Pereira da Silva v. Portugal, 2016, §§ 76-79).

Although the domestic authorities cannot be held responsible for the conduct of a defendant, the delaying tactics used by one of the parties do not absolve the authorities from their duty to ensure that the proceedings are conducted within a reasonable time (Mincheva v. Bulgaria, 2010, § 68).

Conduct of the competent authorities

The State is responsible for all its authorities: not just the judicial organs, but all public institutions (Martins Moreira v. Portugal, 1988, § 60); for the extent of the State’s responsibility, see Bieliński v. Poland, 2022, § 44, concerning backlogs of cases, delays in producing reports, including expert opinions, structural deficiencies and measures to be taken/resources to be allocated within the judicial system. Only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (Humen v. Poland [GC], 1999, § 66; Buchholz v. Germany, 1981, § 49; Papageorgiou v. Greece, 1997, § 40). The Court examines the proceedings as a whole, meaning that although the national authorities may be deemed responsible for certain procedural defects which caused delays in the proceedings, they may still have complied with their duty to examine the case expeditiously under Article 6 (Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 211).

Even in legal systems applying the principle that the procedural initiative lies with the parties, the latter’s attitude does not absolve the courts from the obligation to ensure the expeditious trial required by Article 6 § 1 (Sürmeli v. Germany [GC], 2006, § 129; Pafitis and Others v. Greece, 1998,§ 93; Tierce v. San Marino, 2003, § 31).

The same applies where the cooperation of an expert is necessary during the proceedings: responsibility for the preparation of the case and the speedy conduct of the trial lies with the judge (Sürmeli v. Germany [GC], 2006, § 129; Capuano v. Italy, 1987, §§ 30-31; Versini v. France, 2001, § 29).

Although the obligation to give a decision within a “reasonable time” also applies to a Constitutional Court, it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (compare Oršuš and Others v. Croatia [GC], 2010, § 109; Süßmann v. Germany, 1996, §§ 56-58; Voggenreiter v. Germany, 2004, §§ 51-52). Furthermore, while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (Von Maltzan and Others v. Germany (dec.) [GC], 2005, § 132). Nevertheless, a chronic overload cannot justify excessive length of proceedings (Probstmeier v. Germany, 1997, § 64). For an example of unreasonably lengthy proceedings before a constitutional court, see Project-Trade d.o.o. v. Croatia, 2020, §§ 101-102, and for the suspension of the examination of a case by the ordinary courts pending the adoption of a position by the Constitutional Court, see Bieliński v. Poland, 2022, § 47.

Since it is for the member States to organise their legal systems in such a way as to guarantee the right to obtain a judicial decision within a reasonable time, an excessive workload cannot be taken into consideration (Vocaturo v. Italy, 1991, § 17; Cappello v. Italy, 1992, § 17; regarding an exceptionally heavy workload, see, for example, Bieliński v. Poland, 2022, § 46). Nonetheless, a temporary backlog of business does not involve liability on the part of the State provided the latter has taken reasonably prompt remedial action to deal with an exceptional situation of this kind (Buchholz v. Germany, 1981, § 51). Methods which may be considered, as a provisional expedient, include choosing to deal with cases in a particular order, based not just on the date when they were brought but on their degree of urgency and importance and, in particular, on what is at stake for the persons concerned. However, if a state of affairs of this kind is prolonged and becomes a matter of structural organisation, such methods are no longer sufficient and the State must ensure the adoption of effective measures (Zimmermann and Steiner v. Switzerland, 1983, § 29; Guincho v. Portugal, 1984, § 40). The fact that such backlog situations have become commonplace does not justify the excessive length of proceedings (Unión Alimentaria Sanders S.A. v. Spain, 1989, § 40).

Furthermore, the introduction of a reform designed to speed up the examination of cases cannot justify delays since States are under a duty to organise the entry into force and implementation of such measures in a way that avoids prolonging the examination of pending cases (Fisanotti v. Italy, 1998, § 22). In that connection, the adequacy or otherwise of the domestic remedies introduced by a member State in order to prevent or provide redress for the problem of excessively long proceedings must be assessed in the light of the principles established by the Court (Scordino v. Italy (no. 1) [GC], 2006, §§ 178 et seq. and 223). A far-reaching reform of the national justice system affecting a particular court’s operational capacity does not exempt the State from its Convention obligation to act diligently (Bara and Kola v. Albania, 2021, §§ 68-71).

The State was also held to be responsible for the failure to comply with the reasonable-time requirement in a case where there was an excessive amount of judicial activity focusing on the applicant’s mental state. The domestic courts continued to have doubts in that regard despite the existence of five reports attesting the applicant’s soundness of mind and the dismissal of two guardianship applications; moreover, the litigation lasted for over nine years (Bock v. Germany, 1989,
§ 47).

A strike by members of the Bar cannot by itself render a Contracting State liable with respect to the “reasonable time” requirement; however, the efforts made by the State to reduce any resultant delay are to be taken into account for the purposes of determining whether the requirement has been complied with (Papageorgiou v. Greece, 1997, § 47).

Where repeated changes of judge slow down the proceedings because each of the judges has to begin by acquainting himself with the case, this cannot absolve the State from its obligations regarding the reasonable-time requirement, since it is the State’s task to ensure that the administration of justice is properly organised (Lechner and Hess v. Austria, 1987, § 58).

While it is not the Court’s function to analyse the manner in which the national courts interpreted and applied the domestic law, it nonetheless considers that judgments quashing previous findings and remitting the case are usually due to errors committed by the lower courts and that the repetition of such judgments may point to a shortcoming in the justice system (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 147).

What is at stake in the dispute

Examples of categories of cases which by their nature call for particular expedition:

Particular diligence is required in cases concerning civil status and capacity (Bock v. Germany, 1989, § 49; Laino v. Italy [GC], 1999, § 18; Mikulić v. Croatia, 2002, § 44).
Child custody cases must be dealt with speedily (Hokkanen v. Finland, 1994, § 72; Niederböster v. Germany, 2003, § 39), all the more so where the passage of time may have irreversible consequences for the parent-child relationship (Tsikakis v. Germany, 2011, §§ 64 and 68) – likewise, cases concerning parental responsibility and contact rights call for particular expedition (Laino v. Italy [GC], 1999, § 22; Paulsen-Medalen and Svensson v. Sweden, 1998, § 39). The requirement of special diligence applies to foster care proceedings instituted by grandparents whose grandchildren had been left without parental care (Q and R v. Slovenia, 2022, § 80).
Employment disputes by their nature call for expeditious decision (Frydlender v. France [GC], 2000, § 45; Vocaturo v. Italy, 1991, § 17; and Ruotolo v. Italy, 1992, § 17; see also the references in Bara and Kola v. Albania, 2021, § 72) – whether the issue at stake is access to a liberal profession (Thlimmenos v. Greece [GC], 2000, §§ 60 and 62), the applicant’s whole professional livelihood (König v. Germany, 1978, § 111), the continuation of the applicant’s occupation (Garcia v. France, 2000, § 14), an appeal against dismissal (Frydlender v. France [GC], 2000, § 45; Buchholz v. Germany, 1981, § 52), the applicant’s suspension (Obermeier v. Austria, 1990, § 72), transfer (Sartory v. France, 2009, § 34) or reinstatement (Ruotolo v. Italy, 1992, § 117), or where an amount claimed is of vital significance to the applicant (Doustaly v. France, 1998, § 48). This category includes pensions disputes (Borgese v. Italy, 1992, § 1818; see also Bieliński v. Poland, 2022, § 48).). For a dispute about a promotion, see Bara and Kola v. Albania, 2021, § 72.
Exceptional diligence is required from the authorities in the case of an applicant who suffers from an “incurable disease” and has “reduced life expectancy” (X v. France, 1992, § 47; A. and Others v. Denmark, 1996, §§ 78-81; Pailot v. France, 1998, § 68).

Others

Special diligence was required of the relevant judicial authorities in investigating a complaint lodged by an individual alleging that he had been subjected to violence by police officers (Caloc v. France, 2000, § 120).
In a case where the applicant’s disability pension made up the bulk of his resources, the proceedings by which he sought to have that pension increased in view of the deterioration of his health were of particular significance for him, justifying special diligence on the part of the domestic authorities (Mocié v. France, 2003, § 22); see also in this context, the case of a reduction in means of subsistence, Bieliński v. Poland, 2022, § 48.
In a case concerning an action for damages brought by an applicant who had suffered physical harm and was aged 65 when she applied to join the proceedings as a civil party, the issue at stake called for particular diligence from the domestic authorities (Codarcea v. Romania, 2009, § 89).
The issue at stake for the applicant may also be the right to education (Oršuš and Others v. Croatia [GC], 2010, § 109).

On the contrary, special diligence is not required, for example, for a claim for compensation relating to damage sustained in a road accident (Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 213) or the division of a deceased person’s estate between the heirs, as specified in Omdahl v. Norway, 2021, §§ 63-64.

For a case concerning a delay in the drafting of the reasons for a court judgment, see Mierlă and Others v. Romania (dec.), 2022, § 80.