The Law states that investigation conducted by the public prosecutor and police, before the court trial, is also subject to this remedy after filing criminal charges. However, the scope of this protection does not include criminal charges filed before public prosecutor which caused pre-investigation proceedings or other acts undertaken by authority conducting pre-investigation, unless they lead to criminal proceedings. Since the law does now refer to these situations at all, it is not certain if this lack of regulation was the purpose of this law or it unintentionally failed to regulate these situations. In addition to that, no official commentary refers to this problem as well.
Therefore the law does not protect the right of parties who bear unreasonably long proceedings undertaken by investigation authorities prior to criminal proceeding and, not only in reasonable time but never get the chance to start a criminal proceeding because of the inefficiency of those authorities and weakening of evidence due to time that has passed. This way some people are vainly waiting and seeking for justice which never even becomes a subject of the trial.
The other obstacle is that, in order to exercise the right to trial within a reasonable time, the injured party, private prosecutor and the subsidiary prosecutor must, besides criminal charges, file a property claim too. When there is only criminal matter, seems like these parties are out of the scope of this protection. This norm is also unjustified and contrary to the purpose of this protection, especially if we consider the nature of questions in a criminal matter where the party is unlikely to file a property claim too. These are usually questions of delicate matter which require the most urgent and fair trial, so to exclude party form protection in these situations seems absurd and unfair.
On the other hand, in these exact same situations the defendant, who is usually less likely to ask for acceleration of the trial (especially regarding a criminal act whose prescription period is short), according to the law, has a right to the complaint about acceleration of the trial.
We believe that this kind of regulation does injustice to parties in very sensitive matters, in trials where efficiency is crucial because of violation of primary rights. Also regulations like this form weak and incomplete legal system.
From our point of view, there was no need to degrade the protection of the right to trial within the reasonable time in such way. Legislators could regulate that with no property claim party is not given the right to seek monetary just satisfaction, yet, that it can file a complaint about the acceleration of the trial and that violation of party`s right can be established by the court.
Comparing to previous regulations, The Law on Protection of the Right to Trial within a Reasonable Time completely and precisely regulates the procedure for protecting this right. However, the fact that the law is completely silent on some questions, causes the great instability of the law system. If this law would be interpreted following the rules of interpretation, it would seem that parties in situations that are mentioned have no right to protection of their right to trial within a reasonable time, which conclusion would be dangerous and wrong.
The biggest doubt in the success of these norms to protect the right to trial within a reasonable time is caused by the fact that party files the complaint before the same court that has jurisdiction over the trial in the matter and the President of that same court has a jurisdiction to decide on the complaint. What are the odds that the President of the court would decide to establish that court, that he is leading, has violated party’s rights and that just satisfaction needs to be made? A lot of decisions like these would leave a bad impression about that court and about the President of that court, who needs manage both legal and financial, organizational, issues in that institution. Since the President of the court, who is not bonded by any exact conditions in law, needs to decide if the complaint is legit, this leaves the doubt that he is more likely, preserving his and the reputation of the court, to find that conditions for upholding the complaint are not met, and then to informally odder the judge to take certain measures in order to accelerate the trial.
Bearing in mind all the questions that remained unanswered and all issues presented, we need to rely on the justice of appeal process and, if it’s necessary, regular constitutional appeal, since the article 82 paragraph 2 of the Law on Constitution Court is out of force. This solution will anyhow accelerate the process of deciding on the constitutional appeal since in some cases will already be decided by other courts.