CASE OF STEMPFER v. AUSTRIA

FIRST SECTION

CASE OF STEMPFER v. AUSTRIA

(Application no. 18294/03)

JUDGMENT

STRASBOURG 

26 July 2007

FINAL

26/10/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stempfer v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 5 July 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 18294/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Josef Stempfer (“the applicant”), on 26 May 2003.

2. The applicant was represented by Mr J. Postlmayr, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

3. On 20 September 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. The Government, in their observations, requested the Court to give a separate decision on the admissibility of the application. However, the Court has found no reasons to discontinue the application of Article 29 § 3. It therefore rejects the request.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1934 and lives in St Johann am Walde.

5. On 21 December 1995 the applicant, by failing to grant the right of way, caused a traffic accident in which the driver of another car was injured.

6. On 16 April 1996 the Mattighofen District Court (Bezirksgericht), having held the trial at which it heard the applicant, the victim and a motor vehicles expert, found the applicant guilty of negligently causing bodily harm (Article 88 §§ 1 and 4 of the Criminal Code – Strafgesetzbuch) and acquitted him of the charge of having abandoned the victim (Article 94 § 1 of the Criminal Code). No appeals were made and the judgment became final.

7. On 8 February 1996 the Braunau District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) finding the applicant guilty of having failed to stop after the traffic accident of 21 December 1995 and of having failed to inform the next police station (Section 4 §§ 1 (a) and 2 in conjunction with Section 99 § 2 (a) of the Road Traffic Act – Straßenverkehrsordnung). It imposed a fine of 1,600 Austrian schillings (ATS – approximately 116 euros) on him with 72 hours' imprisonment in default.

8. The applicant raised an objection (Einspruch) on 29 February 1996. He referred to the proceedings before the Mattighofen District Court which were at that time still pending. Once these proceedings were terminated the applicant informed the District Administrative Authority accordingly, arguing that further administrative criminal proceedings against him relating to the same set of facts violated the ne bis in idem principle. He requested that these proceedings be discontinued.

9. On 12 September 1996 the District Administrative Authority issued a penal order (Straferkenntnis) confirming its previous decision. It noted that, in contrast to the criminal proceedings before the courts, the conduct at stake was the failure to inform the police and not the failure to assist the victim.

10. The applicant appealed. Referring to the Court's judgment in Gradinger v. Austria (23 October 1995, Series A no. 328‑C) he asserted that the two sets of proceedings were based on the same conduct. He further argued that his defence, which had been accepted in the court proceedings, was that he had not even noticed the accident. He explicitly waived his right to a hearing.

11. On 21 October 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat), without a hearing, dismissed the applicant's appeal. It noted that the offence of abandoning the victim under Article 94 of the Criminal Code required intent, and therefore presupposed that the suspect was aware of having caused an accident in which a person had been injured. In contrast, negligence was sufficient for the commission of the offences under Section 4 §§ 1 (a) and 2 of the Road Traffic Act. Had the applicant paid the required attention he would have noticed the accident. In coming to this conclusion, the Independent Administrative Panel had regard to the findings of the criminal court, namely that the applicant had noticed the approaching vehicle before turning to the left into the street. A diligent driver would therefore have been required to check in the rear mirror whether his manoeuvre had been safe.

12. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 19 November 1996. He submitted in particular that the conviction violated the ne bis in idem principle. Moreover, he alleged that the Independent Administrative Panel had applied an unconstitutional provision when fixing the sentence. On 10 January 1997 the Independent Administrative Panel submitted its observations.

13. On 10 October 1997 the Constitutional Court quashed the Independent Administrative Panel's decision. It found that it could not be excluded that, when fixing the sentence, the Independent Administrative Panel had applied a provision which had been declared unconstitutional by the Constitutional Court's judgment of 9 October 1997. That provision had excluded the application of Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) in road traffic proceedings. That provision states that the statutory minimum fine may be reduced by half, if the extenuating circumstances clearly outweigh the aggravating circumstances. This decision was served on the applicant's counsel on 4 November 1997.

14. On 21 November 1997 the Independent Administrative Panel, without a hearing, confirmed its previous decision. Fixing the sentence anew, it noted that even when applying Section 20 of the Code of Administrative Offences, the fine was commensurate to the applicants' guilt.

15. The applicant lodged a complaint with the Constitutional Court on 9 January 1997. He alleged a violation of the ne bis in idem principle. The Independent Administrative Panel submitted its observations on 6 March 1998.

16. On 17 June 2000 the Constitutional Court refused to deal with the complaint for lack of prospects of success. As to the applicant's complaint under Article 4 of Protocol No. 7 it noted that the present case did not concern an example of a single act constituting more than one offence (kein Fall der Idealkonkurrenz).

17. On 25 September 2000 the Constitutional Court granted the applicant's request to transfer the case to the Administrative Court (Verwaltungsgerichtshof). The latter received that request on 16 November 2000.

18. The applicant supplemented his complaint on 9 January 2001. He reiterated his complaint about a violation of the ne bis in idem principle. Moreover, he complained that no oral hearing had been held in the second set of proceedings before the Independent Administrative Panel. Finally, he requested the Administrative Court to hold a hearing.

19. On 18 November 2002 the applicant complaining about the length of the proceedings before the Administrative Court.

20. On 28 February 2003 the Administrative Court, sitting in camera, refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue.

21. The decision was served on the applicant's counsel on 22 April 2003.

II. RELEVANT DOMESTIC LAW

A. Criminal Code

22. Article 94 § 1 of the Criminal Code (Strafgesetzbuch), provides as follows:

“Anyone who fails to assist another person to whom, even if not unlawfully, he has caused bodily injury ... shall be liable to up to one year's imprisonment or up to 360 day-fines.”

B. Road Traffic Act

23. Section 4 of the Road Traffic Act (Straßenverkehrsordnung) reads as follows:

“1. All persons whose conduct at the scene of a traffic accident was causally related to the accident shall

(a) if they are driving a vehicle, stop immediately;

...

2. If anyone has been injured in a traffic accident, the persons referred to in subsection 1 above shall provide assistance; if they are not capable of doing so, they shall arrange for assistance without delay. They shall further inform the nearest police station immediately.”

24. Section 99 § 2 (a) of the Road Traffic Act in the version in force at the material time, provided that it was an administrative offence punishable by a fine of not less than ATS 500 and not exceeding ATS 30,000 or, in default of payment, by one day to six weeks' imprisonment, for any driver having caused a traffic accident causing bodily injury to act contrary to Section 4 §§ 1 and 2.

25. Section 99 § 6 provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts.

C. Code of Administrative Offences

26. Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows:

“2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

27. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. Moreover, he complained that he did not have a hearing in the second set of proceedings before the Independent Administrative Panel or before the Administrative Court. Finally he complained that the authorities' findings as regards his negligence in failing to notice the accident violated the presumption of innocence:

He relied on Article 6 of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. Admissibility

1. Length of proceedings

28. The period to be taken into consideration began on 8 February 1996 and ended on 22 April 2003. It thus lasted seven years and two and a half months for four levels of jurisdiction.

29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Lack of a hearing in the second set of the proceedings

30. The Court reiterates in the first place that the Independent Administrative Panel is the only body deciding in administrative criminal proceedings which qualifies as a tribunal and has a full scope of review. The applicant was therefore in principle entitled to a hearing before the Independent Administrative Panel (see Baischer v. Austria, no. 32381/96, §§ 25-30, 20 December 2001). However, According to the Court's case-law, the waiver of a right guaranteed by the Convention – in so far as it is permissible – must be established in an unequivocal manner (see, for instance, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 23, § 51).

31. In the first set of proceedings, the applicant, represented by counsel, explicitly waived his right to a hearing (see paragraph 10 above). He did not request a hearing in the second set of proceedings before the Independent Administrative Panel either. The failure to do so is all the more important as the only new issue which was at stake in the second set of proceedings was the application of Section 20 of the Administrative Offences Act, a provision concerning the fixing of the sentence: Section 51e § 2 of the Administrative Offences Act provides for cases in which an appeal only concerns legal issues or the severity of the sentence imposed, that the Independent Administrative Panel decides without a hearing unless the accused has explicitly requested one (see paragraph 26 above). In these circumstances, the failure to request a hearing is to be considered as an unequivocal waiver.

32. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Alleged violation of the presumption of innocence

33. The Court observes that the Independent Administrative Panel based its findings of fact on the applicant's defence that he had not actually noticed the accident. As regards the legal assessment, the Panel, giving detailed reasons, concluded that the applicant had acted negligently as he could have noticed the accident, had he applied the necessary diligence. The Court therefore finds that there is no indication of a violation of the presumption of innocence (see, a contrario, Telfner v. Austria, no. 33501/96, § 15, 20 March 2001).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Merits

34. The applicant maintained that the duration of the proceedings was unreasonable, since the case was not complex and emphasised that there was a long delay in the proceedings before the Administrative Court.

35. The Government asserted that the case was legally complex, since it raised a ne bis in idem issue. At the time of the first set of proceedings the Constitutional Court had to review numerous provisions of Austrian administrative criminal law in the light of the Court's case-law under Article 4 of Protocol No. 7. In addition, at the time of the second set of proceedings before the Constitutional Court, a review of a provision of the Road Traffic Act relating to issues of sentencing, which could possibly have had effects on the applicant's case, was pending. Noting that only a fine of some EUR 116 was at stake for the applicant, the duration of the proceedings could still be regarded as reasonable.

36. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

37. The present case, which came before four levels of jurisdiction, was not complex in terms of fact. While the proceedings before the administrative authorities and the first set of proceedings before the Constitutional Court were conducted with reasonable speed, the argument as to the legal issues raised by the case does not fully explain the duration of the second set of proceedings before the Constitutional Court, which lasted three and a half years, from 9 January 1997 until 17 July 2000. Finally, in the proceedings before the Administrative Court a period of complete inactivity of more than two years occurred between 9 January 2001 and 28 February 2003.

38. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Geyer v. Austria, no. 69162/01, §§ 23-28, 7 July 2005; Fehr v. Austria, no. 19247/02, §§ 19-26, 3 February 2005; and Blum v. Austria, no. 31655/02, §§ 22-24, 3 February 2005, all concerning administrative criminal proceedings of a duration comparable to the present case and with considerable delays before the Administrative Court).

39. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

40. The applicant further complained about the lack of a remedy in respect of his complaint about the length of the proceedings. He relied on Article 13 of the Convention, which, so far as material, provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority....”

A. Admissibility

41. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that is it not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

42. The applicant asserted that no remedies were available against the length of administrative criminal proceedings.

43. For their part, the Government stressed that the Constitutional Court examined complaints about the length of proceedings before the lower courts. According to the Constitutional Court's case-law, excessive length was also a mitigating circumstance which might lead to a reduction of sentence.

44. As far as the proceedings before the Constitutional Court and the Administrative Court itself were concerned, the Government contended that under the Convention there was no obligation for a State to provide for additional levels of appeal and a further legal remedy by which to challenge decisions of last-instance courts. Such a requirement would affect basic issues of the Austrian Federal Constitution and most likely also the legislation of most Contracting States and their freedom to organise their judicial system. Having regard to the average duration of proceedings before the Constitutional Court and the Administrative Court: eight and a half months and twenty-two months respectively, the Austrian legislator had found no need to provide a remedy.

45. The Court reiterates that the correct interpretation of Article 13 of the Convention is that this provision guarantees an effective remedy before a national authority for an alleged violation of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). As established in its case-law, it reiterates that the remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudla, cited above, § 158). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudla, cited above, § 159; see also Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 186-87, ECHR 2006-...).

46. The Government argue in essence that a Contracting State should not be required under Article 13 to provide a remedy against delays caused by one of its highest courts. The Court observes that the State's primary duty is to organise its judicial system so as to ensure that the overall duration of civil or criminal proceedings, including the duration before the highest courts, remains “reasonable”. As regards remedies against excessive length of proceedings, it follows from the Court's case-law cited above, that Contracting States have a choice as regards their nature, since they may opt either for a preventive or for a compensatory remedy. Moreover, they remain free to establish the modalities for its exercise. The Court therefore finds that the States enjoy considerable freedom in complying with the requirements of Article 13.

47. Turning to the circumstances of the present case, the Court will examine whether there had been a remedy compatible with Article 13 of the Convention available to grant the applicant appropriate relief as regards his complaint about the length of proceedings.

48. The present proceedings exceeded the reasonable-time requirement under Article 6 of the Convention in particular as delays occurred while the case was pending before the Constitutional Court and the Administrative Court (see paragraph 37 above). Since the Government have not shown that any form of relief – either preventive or compensatory – was available for these delays or for the overall duration of the proceedings, there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to a hearing within a reasonable time as guaranteed by Article 6 § 1 of the Convention (see, as a similar case, Hauser-Sporn v. Austria, no. 37301/03, § 40, 7 December 2006).

III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7 TO THE CONVENTION

49. The applicant complained that he did not have a review of his conviction by a higher tribunal, as the scope of review of the Constitutional Court is limited and the Administrative Court refused to deal with his complaint under Section 33a of the Administrative Court Act.

50. However, the Court has already held that a decision by the Administrative Court not to deal with a complaint pursuant to Section 33a of the Administrative Court Act may be equated to a decision given on an application for leave to appeal, which can itself be regarded as a review within the meaning of Article 2 of Protocol No. 7 (see Weh and Weh v. Austria (dec.), no. 38544/97, 4 July 2002).

51. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION

52. The applicant complained that his conviction under Section 4 § 2 of the Road Traffic Act in the administrative criminal proceedings following his acquittal under Article 94 § 1 of the Criminal Code violated Article 4 of Protocol No. 7 which, so far as material, reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

53. The Court reiterates its findings in the Franz Fischer v. Austria judgment (no. 37950/97, § 35, 29 May 2001). In that case, after having analysed its previous judgments in the cases of Gradinger (cited above) and Oliveira v. Switzerland (judgment of 30 July 1998, Reports of Judgments and Decisions 1998‑V), the Court found that the mere fact that one act constitutes more than one offence is not contrary to Article 4 of Protocol No. 7. However, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements.

54. The Court notes that according to the Constitutional Court the present case did not concern a single act constituting more than one offence. Indeed, there is force in the argument that the offences at issue do not punish the same act, or omission as it is: Article 94 § 1 of the Criminal Code punishes the failure to provide the required help to a person whose injury one has caused, while Section 4 § 1 (a) and Section 4 § 2 second sentence punish the failure to stop after having caused an accident resulting in bodily injury and the failure to inform the police about such an accident.

55. In any case, even assuming that both offences related to the same act, namely the applicant's driving away after the accident, the Court has already found, in a case raising precisely the same issue as the present case, that the two offences differ in their essential elements (see Hauser-Sporn, cited above, § 45). Thus, is cannot be said that the applicant was “tried ... again ... for an offence of which he had already been finally acquitted” within the meaning of Article 4 of Protocol No. 7.

56. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

58. The applicant claimed that the imposition of a fine and the costs in the administrative criminal proceedings were the result of a violation of Article 4 of Protocol No. 7. He therefore requested reimbursement of the amount of 2,080 Austrian schillings (ATS), i.e. 151.16 euros (EUR) under the head of pecuniary damage. Moreover, he claimed EUR 1,000 in respect of non-pecuniary damage.

59. The Government commented that there was no causal link between the length of the proceedings and the lack of an effective remedy in that respect and the pecuniary damage claimed by the applicant. As to non-pecuniary damage, they held that the finding of a violation would constitute sufficient just satisfaction.

60. The Court found violations of Articles 6 § 1 and 13 in respect of the length of the proceedings and the lack of a remedy. It does not discern any causal link between the violations found and the pecuniary damage claimed and therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

61. The applicant also claimed a total amount of EUR 6,932.92 composed of EUR 3,932.92 for the costs and expenses incurred in the domestic proceedings and EUR 3,000 for those incurred before the Court.

62. The Government contested these claims. Moreover, they submitted that they assumed the sums claimed included value-added tax (VAT).

63. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.

64. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses of the domestic proceedings since they were not incurred to prevent or redress the violations found. Furthermore, the Court having regard to the sums awarded in comparable cases, considers it reasonable to award EUR 2,000 in respect of costs and expenses incurred in the Convention proceedings. This sum includes VAT.

C. Default interest

65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning the excessive length of the proceedings and the lack of an effective remedy admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 2,000 (two thousand euros) in respect to costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Malinverni, joined by Mr Rozakis and Mr Jebens, is annexed to this judgment.

C.L.R.
S.N.

CONCURRING OPINION OF JUDGE MALINVERNI
JOINED BY JUDGES ROZAKIS AND JEBENS

(Translation)

I concur with the operative provisions of the judgment according to which there has been a violation of Article 13 of the Convention in this case, on the ground that in the respondent State there was no domestic remedy allowing the applicant to complain about the breach of his right to a hearing within a reasonable time as guaranteed by Article 6 § 1.

In reaching this conclusion, the judgment states that Article 13 must be construed as guaranteeing an effective remedy before a national authority for the victim of an alleged violation of Article 6 § 1. Referring to the judgment in Kudła v. Poland ([GC], no. 30210/96, § 156, ECHR 2000-XI), the judgment goes on to say that domestic remedies may be regarded as “effective”, within the meaning of Article 13 of the Convention, “if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudla, § 158).

The judgment thus concludes that Article 13 offers States an alternative: “a remedy is 'effective' if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred” (paragraph 45).

Further on the judgment reasserts that “[a]s regards remedies against excessive length of proceedings, it follows from the Court's case-law ... that Contracting States have a choice as regards their nature, since they may opt either for a preventive or for a compensatory remedy” (paragraph 46).

It is on this latter point that I wish to make a few complementary remarks.

Contrary to what the judgment would seem to imply, I do not believe that preventive remedies and compensatory remedies are really equivalent and it should not be open to States to choose or to opt for one or the other of these two solutions.

In my view, priority should be given to the preventive measures that States must adopt in order to eradicate the phenomenon of an excessive length of proceedings. Such measures are numerous and varied, ranging from an increase in the number of judges and clerks, or even the number of courts, to an overhaul of judicial organisation, for example by generalising the system of single judge at first instance. It is also important, however, not to underestimate the benefits of more frequent recourse to methods of alternative dispute resolution, such as mediation, arbitration or conciliation, although the scope of such solutions is confined to disputes arising in connection with certain private law matters.

Moreover, the solutions to the problem of an excessive length of proceedings have to be divided into two main categories: those concerning proceedings that have already ended and those applicable to proceedings that are still pending.

Where the proceedings have already ended, there is only one remedy that would seem appropriate: redress for the damage caused to the victim, in the form of compensation. But such a measure should be reserved exclusively for proceedings that have already come to an end.

As regards proceedings that are still pending, an award of compensation to the victim cannot be regarded as equivalent to measures adopted in order to expedite those proceedings. Where the proceedings have not yet ended, preference must therefore be given to “accelerative measures”, as they represent the most effective way of enforcing the right to a hearing within a reasonable time.

Examples of “accelerative measures” to expedite proceedings are numerous and varied: a higher court could set a time-limit within which the court responsible for the delay has to bring the proceedings to a close; the time allowed for pleadings to be submitted by the parties, expert reports to be filed, possible witnesses to be summoned, etc., could be reduced.

In order to uphold the right to a hearing within a reasonable time, as guaranteed by Article 6 § 1, States thus cannot confine the solution to systematic compensation awards to victims of violations of that right. Payment of compensation cannot therefore be regarded as an adequate means for States to fulfil their obligations under Articles 6 and 13 of the Convention.

In conclusion, States must above all do their best to avert the phenomenon of an excessive length of proceedings. An award of compensation to victims is no more than a stopgap solution. It cannot replace the obligation for States to organise their judicial systems so as to address the root cause of the problem, in particular by adopting “accelerative measures” to expedite proceedings that are still pending.

 

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