Main Body Part 1
Next follows the first main chunk discussing and debating the title of the dissertation. To maintain structure, even this sub-section of the dissertation has its own introduction, some degree of scene-setting with Art 6 in the particular context of the chapter, argument through various levels and conclusions.
3. REASONABLE TIME
3.1. Introduction
It has been stated that “excessive delays in the administration of justice constitute an important danger, in particular for the respect of the rule of law” and for the legal certainty of citizens. This importance is reflected in the express protection of the reasonable time requirement in Article 6. There have been recent challenges in the civil jurisdiction context on this ground, the most significant of which being raised in Erich Gasser GmbH v Misat Srl, concerning conflict with lis pendens. A further instance, the common law doctrine of forum non conveniens has been suggested to be so incompatible, which would therefore have implications for the doctrine in its now very limited common law habitat.
3.2. Framework under Article 6
In civil cases, time starts to run when the proceedings are instituted and stops when legal uncertainty has been removed, which normally requires that the final appeal decision has been made or the time for making an appeal has expired. It is generally accepted that the correct approach is to decide whether the overall delay is prima facie “unreasonable” for the type of proceedings concerned and thereafter consider whether the State is able to justify each period of delay. In assessing such justification, the limited guidelines indicate that all the circumstances will be considered, with particular regard to the complexity of the case and the conduct of the applicant and judicial authorities in addition to the behaviour of other parties to the case and what is at stake in the litigation for the applicant.
Generally, where proceedings are stayed, there are three stages which must be distinguished for determining delay. First, the proceedings before the domestic court. Any unjustifiable delay at this point would amount to a direct breach of Article 6. Second, the transfer of proceedings to the foreign court. Delay at this stage would be less justifiable where, for instance, there was known to be a heavy backlog of cases. Notwithstanding, the “normal lapses of time stemming from the transfer of the cases” are not to be regarded as unjustified. Third, the proceedings before the foreign court. At the second and third stages, although any unreasonable delay by the foreign court will amount to a direct breach by that court, there could also be an indirect breach by the domestic court, but only to the extent that the party suffered, or risked suffering, a flagrant breach.
Endnotes
Committee of Ministers of the Council of Europe, Resolution DH (97) 336, 11 July 1997.
Fabri and Langbroek: 2003, p3.
C-116/02 [2005] QB 1.
Opinion of AG Léger in Owusu v Jackson C-281/02 [2005] QB 801 at [270].
A sist by the Scottish courts through forum non conveniens can be made where jurisdiction is founded on Art.4 of the Judgments Regulation or Convention: Collins et al: 2006, para.12-023. Moreover, a sist can be made on the ground that the courts of England or Northern Ireland are the forum conveniens, because intra-UK jurisdiction can be so settled: Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times, 8 June 1995; Collins: 1995.
Scopelliti v Italy (1993) 17 EHRR 493, at [18].
Vocaturo v Italy [1991] ECHR 34.
E.g. fewer than six years for a reparation action (Huseyin Erturk v Turkey [2005] ECHR 630.)
Clayton and Tomlinson: 2000, p654; Harris, O’Boyle and Warbrick: 1995, p229.
Eckle v Germany (1983) 5 EHRR 1, at [80]; an obvious consideration being delay in commencing proceedings.
Buchholz v Germany [1981] ECHR 2, at [49].
Foti v Italy (1982) 5 EHRR 313, at [61].
Zimmermann and Steiner v Switzerland [1983] ECHR 9; Guincho v Portugal [1984] ECHR 9; cf. Buchholz (n36), at [61], where the backlog was not reasonably foreseeable; exceptional circumstances were taken into account in Foti (n37) as a result of troubles in Reggio Calabria, which impacted proceedings in the courts in Potenza, to which cases had been transferred.
Foti (n37), at [61].
Soering (n14) at [113].
