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‘To Delay Justice Is Injustice’: A Comparative Analysis of (Un)reasonable Delay

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Fair Trial and Judicial Independence

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 27))

Abstract

The study charts the development and content of programmatic and normative approaches to the requirement of conducting judicial procedures within a reasonable time and explores how conflicts between the triple objective of protecting individual rights, legal certainty and the public trust in the judiciary are resolved under the different paradigms.

The normative requirements of the right to a hearing within a reasonable time are firmly settled: its constitutionalisation is completed in all influential legal systems, and its scope and content is also beyond serious dispute. Fundamental change is not expected in this area. However, the number of unreasonably delayed proceedings is still a matter of grave concern in many jurisdictions, thus measures currently in place do not seem to perform their function satisfactorily. The question is whether these problems can be addressed by normative means.

It is submitted that in most modern legal systems, the compliance with the requirement of a hearing within a reasonable time is not a constitutional, and not even a primarily legal, issue. Of course, it is desirable to adopt effective constitutional guarantees in legal systems where they are still lacking. However, it does not seem very practical to further strengthen normative standards or aggravate sanctions of a breach (e.g. an automatic grant of stay of a criminal procedure or dismissal of an indictment in case of a breach).

The author is convinced that in order to implement the right to a hearing within a reasonable time, governments and international bodies must focus on a more effective performance of organisational, administrative and legislative tasks, i.e. to follow a programmatic approach. However, for these purposes a number of additional surveys and reviews must be conducted in the area of legal and organisational sociology. In lack thereof, most of the opinions, suggestions and recommendations currently on the table are just a hunch, conventional wisdom or dogma and do not add up to a solid concept fit for the planning of actual intervention.

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Notes

  1. 1.

    The text was approved by the Round Table Meeting of Chief Justices in the Hague based on a proposal by the Judicial Group on Strengthening Judicial Integrity adopted in 2001.

  2. 2.

    Adopted by the CCJE in November 2010 in Strasbourg.

  3. 3.

    Approved by the Central Council of the International Association of Judges in November 1999 in Taipei.

  4. 4.

    Adopted by the Ibero-American Summit of Presidents of Supreme Justice Tribunals and Courts.

  5. 5.

    COE Rec (86) 12; COE Rec (87) 18; CCEJ Op. No. 6 (2004).

  6. 6.

    The Charter was adopted under the auspices of the Council of Europe with the participation of the European Association of Judges (EAJ), the European Association of Judges for Democracy and Freedom (MEDEL) and 13 judge-experts from various European jurisdictions.

  7. 7.

    The final version of the Principles was adopted in 1997 in Manila by the 7th Conference of Chief Justices of Asia and the Pacific.

  8. 8.

    CM/Rec (2010) 12, Arts. 35–36.

  9. 9.

    CM/Rec (2010) 12, Art. 37.

  10. 10.

    CM R (94) 12, III.1.d.

  11. 11.

    CM R (87) 18, I (discretionary prosecution).

  12. 12.

    As regards the authority of prosecution, there are three basic models in contemporary Europe: (i) the prosecution merely has the function of preparing the case for a court, (ii) the prosecution has the discretionary power to decide whether to prosecute or not to prosecute even if there is sufficient evidence to prosecute and (iii) the prosecution has the discretionary power to decide whether to prosecute and also has the right to drop a case with conditions or with certain sanctions imposed with the consent of the offender.

  13. 13.

    Terminology in this matter is far from being uniform. In common law jurisdictions summary procedures are at the same time simplified and accelerated with the final decision being res judicata. In continental legal systems the three concepts have somewhat different meanings: summary procedures do not result in res judicata, in simplified procedures some procedural elements and requirements may be omitted or alleviated, while accelerated procedures operate with closer deadlines than in the case of ordinary procedures.

  14. 14.

    CM R (84) 5.

  15. 15.

    Two basic types of such procedures exist: the order for payment (Mahnverfahren) and the référé or kort geding. The latter procedure enables the judge to pass a judgement immediately after a single hearing based on possibly incomplete evidence that is enforceable but does not have the force of res judicata, and the parties are free to commence a procedure on the merits.

  16. 16.

    Pre-action protocols developed in the United Kingdom for certain types of disputes (personal injuries, medical negligence) prescribe steps to be taken by the parties in order to identify issues and exchange information or evidence before proceedings are even commenced. Pre-action protocols may facilitate a settlement by the parties and avoid litigation, but even in lack thereof they definitely accelerate court proceedings. The court may sanction the failure to follow a pre-action protocol.

  17. 17.

    English law and some other legal systems have introduced offers to settle and payments into court where the claimant may offer to accept and the defendant may offer to pay less than the full claim. In lack of a settlement if a claimant gets more than he offered to accept or the defendant must pay less than he initially offered, adverse consequences may follow for the other party.

  18. 18.

    The Code for Crown Prosecutors issued under the 1985 Prosecution of Offences Act gives guidance on general principles in determining whether proceedings for an office should be instituted: a prosecution is less likely to be needed if there is a long delay between the offence taking place and the date of the trial. Court practice directions have also been promulgated, setting time limits for certain procedural steps to be completed. As far as civil cases are concerned, there is a precedent to the effect that the adoption of procedural deadlines included in the Civil Procedure Rules makes all previous case law irrelevant: Biguzzi v Rank Leisure [1999] 1 WLR 1926.

  19. 19.

    Kwamin v Abbey National [2004] IRLR 516 (EAT), para 4.

  20. 20.

    Porter v Magill [2002] 2 AC 357, para 107.

  21. 21.

    Cobham v Frett [2001] 1 WLR 1775, 1783–4: for excessive delay a judgement can be set aside only if to allow it to stand would be unfair.

  22. 22.

    R v Bow Street Stipendiary Magistrates, ex p DPP [1992] Crim LR 790, CA.

  23. 23.

    Attorney-General’s Reference (No 1 of 1990) [1992] QB 630, CA.

  24. 24.

    This view is shared by David Young, Mark Summers, David Corker: Abuse of Process in Criminal Proceedings (3rd ed.). Tottel Publishing, 1.88. On the contrary: ‘Generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment…’ [1964] Connelly v DPP, 48 Cr App Rep 183, AC 1254.

  25. 25.

    Tan v Cameron [1992] 2 AC 205, PC.

  26. 26.

    Jago v District Court of New South Wales [1989] 168 CLR 23, High Court of Australia.

  27. 27.

    Klopfer v North Carolina (1967) 386 U.S. 213. The ruling declared unconstitutional the practice of nolle prosequi with leave in North Carolina.

  28. 28.

    Such interpretation of the Magna Carta is expressly rejected by English and Australian courts, primarily referring to the principle nullum tempus occurrit regi, and taking the view that had the Magna Carta had the objective of securing such right, it would have certainly established a remedy for these purposes: Attorney-General’s Reference (No 1 of 1990) [1992] QB 630, CA; Jago v District Court of New South Wales [1989] 168 CLR 23, High Court of Australia.

  29. 29.

    Beavers v Haubert (1905) 198 U.S. 77.

  30. 30.

    Pollard v U.S. (1957) 352 U.S. 354.

  31. 31.

    U.S. v Ewell (1966) 383 U.S. 116,120. Ironically, a prolonged criminal procedure is often in the interest of the accused.

  32. 32.

    Barker v Wingo (1972) 407 U.S. 514.

  33. 33.

    U.S. v Marion (1971) 404 U.S. 307.

  34. 34.

    U.S. v Lovasco (1977) 431 U.S. 783.

  35. 35.

    Strunk v U.S. (1973) 412 U.S. 434.

  36. 36.

    U.S. v MacDonald (1977) 435 U.S. 850.

  37. 37.

    The federal legislation did spark some constitutional debate. In U.S. v Howard (1977) 440 F. Supp. 1106, a federal judge declared the act unconstitutional because it violated the principle of separation of powers and was an unnecessary infringement on judicial power.

  38. 38.

    Its predecessor, the Canadian Bill of Rights of 1960, was an ordinary federal act, without any legal effect on provincial legislation, and was subject to a rather conservative interpretation by the judiciary.

  39. 39.

    Askov v R. [1990] 2 S.C.R. 1199.

  40. 40.

    R. v Finta [1994] 1 S.C.R. 701.

  41. 41.

    Rahey v R. [1987] 1 S.C.R. 588.

  42. 42.

    [1995] 1 NZLR 491.

  43. 43.

    Graham v District Court at Blenheim [2007] NZAR 32 (22 months passed between arrest and trial); Davies (Daniel) v Police [2008] 1 NZLR 638 (11 months passed between the first hearing and judgement).

  44. 44.

    ‘The right is to trial without undue delay: it is not a right not to be tried after undue delay’. Martin v Tauranga District Court [1995] 1 NZLR 491.

  45. 45.

    The Universal Declaration of Human Rights (1948) does not expressly mention the right to a hearing within a reasonable time besides a general requirement of a fair and public hearing (Art. 10).

  46. 46.

    For a detailed yet accessible analysis of Art. 6 jurisprudence, see Mole and Harry (2006).

    For a targeted analysis of the time factors in Art. 6 jurisprudence, see Calvez ( 2006 ).

  47. 47.

    There are examples, however, of declaration of breach, e.g. Mouvement Burkinabé des Droit de l’Homme et des Peuples v Burkina Faso, Communication 204/97 és 14th Annual Activity Report (2002) 9 IHRR 250, where the Supreme Court of Burkina Faso has refused to deal with a claim for 15 years.

  48. 48.

    See, e.g. Dayra María Levoyer Jiménez v Ecuador, Case 11.992, rep n 66/01 (2003) 10 IHRR 512, where the commission has determined a breach of both articles.

  49. 49.

    Milton García Fajardo & Others v Nicaragua, Case 11.381, rep n 100/01 (2003) 10 IHRR 531.

  50. 50.

    Attorney-General’s Reference (No 2 of 2001) [2001] 1 WLR 1869 (CA); [2004] 2 AC 72 (HL).

  51. 51.

    Privy Council DRA No 3 of 2002 (R v H.M’s Advocate and the AG for Scotland).

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  1. Faculty of Law, Institute of Comparative Law, University of Szeged, Rákóczi tér 1, 6722, Szeged, Hungary

    János Bóka

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  1. Faculty of Law, University of Szeged, Szeged, Szeged, Hungary

    Attila Badó

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Bóka, J. (2014). ‘To Delay Justice Is Injustice’: A Comparative Analysis of (Un)reasonable Delay. In: Badó, A. (eds) Fair Trial and Judicial Independence. Ius Gentium: Comparative Perspectives on Law and Justice, vol 27. Springer, Cham. https://doi.org/10.1007/978-3-319-01216-2_6

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