Law on Protection of Right to Trial Within Reasonable Time

25
Dec 2016

Sign up for our newsletter

Human rights lawyer Serbia

Opportunity to seek justice before the court is a fundamental principle of rule of law and constitutional state. Right to court protection of rights is not only guaranteed by the constitution in every democratic country today, but it is also recognized as a foundation of a modern society. However, when this protection is subject to manipulation by parties in the trial, negligence of legal time limit, resulting in long court trials, justice and protection of law become, in fact, meaningless. This is why the right to fair trial, which includes the right to trial within a reasonable time, belongs to the corpus of human rights enshrined in Article 6 of the European Convention of Human Rights.

In addition to a fair trial before courts in the Republic of Serbia, on 1st of January 2016, The Law on Protection of Right to Trial within a Reasonable Time came into force, protecting the parties in case of an unreasonably long trial. Since 1st of January norms from The Law on Organization of Courts, that used to regulate this right, is no longer in force, as well as the article 82 paragraph 2 of The Law on Constitutional Court.

Regarding previous regulations in The Law on Organization of Courts, the party in the trial could seek for protection of the right to trial within a reasonable time, together with a claim for compensation for damage. This claim had to be filed before the immediate higher court which would decide on them.

As well as by The Law on Organization of Courts, right to trial within a reasonable time was also protected by the Constitution and it could be sought by filing a Constitutional appeal, but only after the trial was concluded, regardless any previous appeals in that matter.

The law on protection of right to trial within a reasonable time

According to The Law On Protection of Right to Trial within a Reasonable Time, all of the parties before court have right to seek protection of the right in civil procedures, enforcement procedures and an injured party, private prosecutor and subsidiary prosecutor in criminal procedures, if they also filed property claim or pleaded for compensation.

Procedure and Jurisdiction

According to The Law On Protection of Right to Trial within a Reasonable Time, by the conclusion of the trial, the party has the right to a remedy if it finds that the trial is unreasonably long due to unjustified delay or abuses of the law aimed at delaying conclusion.

Complaint about the acceleration of the judicial procedure, as a remedy, can be filed before a court which has a jurisdiction over a trial that is a subject of the complaint. The President of the court is obliged to decide on the complaint within 2 months, which differs from previous legal norms that did not predict any time limit for deciding on this matter. This is a step forward in the protection of the right to fair trial since previous law only declaratory defined the urgency of these proceedings.

If a complaint is legitimate, the President of the court will make a decision that establishes that there was a violation of the right to a trial within a reasonable time and it will instruct the court to undertake actions in favor of recent conclusion of the trial. The judge will have 15 days to 4 months to undertake these actions. The decision about the complaint can also establish the priority of the trial that is a subject of complaint, among other trials, or it can set another judge in the matter.

If a delay is caused by public prosecutor actions or lack of them, the public prosecutor of immediately higher jurisdiction will, in accordance with court President’s decision, order to the public prosecutor in the matter to undertake certain activities that will help the conclusion of the trial.

A new complaint can be filed 4 months after the decision in which the previous complaint was denied or 4 months after the decision on appeal for denying party’s complaint.

When court President decides that complaint is legitimate, the party on whose complaint was decided can file another complaint after 5 months.

If a decision also ordered activities that need to be taken in the certain period of time, the party can file a new complaint immediately after that period has passed, and ordered activities haven’t been undertaken.

Any of limitations listed do not exist in trials in which the court set detention, temporary measures, trials regarding minors and enforcement procedures.

If party’s complaint is rejected, a new complaint can be filed immediately.

Standards for deciding

When deciding about the complaint, the court takes into consideration all of the criteria and all of the facts of a case in the matter, it takes into account complexity of the situation and law in question, its nature, activities are undertaken by parties and the court, urgency of the procedure and given time limits. The law prioritizes labor trials, compensation of damages resulted in death, especially if a wrongdoer is the State or public company, proceedings where the court has set detention and family law.

The time before the trial, that passed during the investigation, proceedings taken by public prosecutor or administration, that led to court trial can also be the subject of a complaint if they caused delay. This is what the Law states, how it is understood and it is also the understanding and the interpretation of European Convention on Human Rights and, in accordance with it, the Constitutional court of the Republic of Serbia has developed its practice.

The aim of this remedy is to undo the injustice caused by delaying court proceedings, therefore, The Law does not require paying taxes for filing a complaint.

If a delay is caused by a public prosecutor actions or lack of them, the public prosecutor of immediately higher jurisdiction will, in accordance with court President’s decision, order to the public prosecutor in the matter to undertake certain activities that will help the conclusion of the trial.

Appeal

Party can file an appeal if President of the court does not decide within 2 months, if a complaint is denied or if orders for actions from the decision haven’t been undertaken. If in the decision is found that party’s law was violated but the decision lacks orders for activities that need to be undertaken, the decision can be subject to the appeal.

Party must lodge for appeal within 8 days after the condition was met and before the conclusion of the trial, which was the subject of the complaint.

The appeal must be filed before the court that has decided on the complaint, although the President of the immediately higher court will decide on the appeal within 30 days.

Just satisfaction

Besides from influencing the efficiency of the trial, party, whose complaint was upheld, can also seek for just satisfaction for violation of the right to trial within the reasonable time.

Party can file for satisfaction if the court finds that right to trial within a reasonable time was violated. In that case, the party can request whether monetary satisfaction for non-pecuniary damage, publication of State Attorney’s written statement or publication of court’s judgment that states that right to trial within a reasonable time was violated.

Monetary satisfaction and its amount depend on the circumstances that differ from case to case. However, they vary from 300 to 3 000 Euros and it does not make difference comparing to the old practice of the Constitutional court since the average monetary satisfaction awarded was 500 Euros. Also, the European Court for Human rights for trials that last about 6 years awards from 1.500,00 to 3.000,00 Euros. Therefore, the new law does not make a huge change in that matter, however, we should bear in mind that aim of this remedy is primary the acceleration of the trial and not absolute monetary satisfaction.

Party whose complaint for acceleration of the trial was upheld can seek alignment before State’s attorney, if form of monetary satisfaction or publication of statement about violation of right, within 6 months after its complaint was upheld. If party does not request alignment or if its request was not accepted, within a year, a party can seek for satisfaction before court in trial against Republic of Serbia.

Apart from the request for just satisfaction for non-pecuniary damages, a party can file a complaint about compensatory damages against the Republic of Serbia, if such damage had occurred.

Outstanding answers

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.

Conclusion

Although Court practice that is yet to come is going to indicate what are conditions that parties really need to meet in order to succeed in this claim. We are left with expectations to see if applying The Law on Protection of Right to Trial within a Reasonable Time will fulfill its purpose. What discourages us is that most of the complaints about the acceleration of trials on the basis of this law are denied and that court acknowledges and decides in favor of only those complaints regarding an evident violation.

Bearing in mind all that has been stated, it is not a simple decision whether the new law is bringing new and better changes. On one hand, The Law on Protection of Right to Trial within a Reasonable Time entirely regulates the procedures but by doing this it does not make significant changes comparing to prior regulations. However, we are deeply against the solution in which the jurisdiction for deciding on the complaint in the same jurisdiction which has made the violation of party’s right according to the complaint. A solution like this is contrary to legal logic and party’s best interest. This is proved by the fact that courts since applying this law are very strict when deciding and regarding upholding judgments.

When regulating the just satisfaction, the new law hardly brought any changes.

The biggest oversight is, we believe, the fact that the new law is silent about some situations where the violation of the right is evident and that only partial regulation harms the legal system rather than improves it. Ignoring those situations may lead to the conclusion that party does not deserve a protection of its rights, which would directly violate rights that are guaranteed by Constitution.

Such oversights affect the objective evaluation of the new law, however, it remains to be seen if courts will manage to acquire the purpose of its norms and overcome unanswered questions by applying the law.

Share blog

Latest Post

Latest Post

CONTACT