In today's time, when proceedings before the court last for a long time, even for several years, and some cases last for dozens of years, the question arises of the effectiveness of the protection of rights after a long period of time has passed. From the perspective of valid judicial protection and legal certainty, regardless of the complexity of the case, it is necessary to carry out the procedures without delay. In this sense, and as there are many procedures that last a very long time, without any justified reason, there is a violation of the right to a trial within a reasonable time of the parties in the procedure.
The right to a trial within a reasonable time is one of the fundamental rights of every individual, which is guaranteed by the European Convention of Human Rights in Article 6, as well as by the Constitution of the RS, namely Article 32, which proclaims the right to a fair trial, and within this right, the right to a trial within a reasonable time is also guaranteed. Furthermore, the right to a trial within a reasonable time is directly or indirectly prescribed by the procedural laws that regulate the rules of various procedures conducted before the court, in such a way that they generally establish the obligation of the court to obtain a decision within a reasonable time, that is, without delay. Finally, the Law on the Protection of the Right to Trial within a Reasonable Time (hereinafter: the Law) prescribes the mechanisms and procedures for exercising and protecting this right in court proceedings.
According to this law, every party in court proceedings, including enforcement proceedings, every participant of non-litigious proceedings, the injured party in criminal proceedings, the private prosecutor and the injured party as the prosecutor, only if they have pointed out property-legal claim, are entitled to a trial within a reasonable time. The public prosecutor, as a party in criminal proceedings, does not have the right to a trial within a reasonable time.
Furthermore, the Law determines the legal remedy for protection of the right to a trial within a reasonable time, namely:
1) complaint to speed up the procedure;
2) appeal;
3) request for just satisfaction.
For the assessment of the existence of a violation of the right to a trial within a reasonable time, the criteria that the court will apply when deciding on a legal remedy are of key importance, and the Law stipulates that all the circumstances of the case at trail must be taken into account, above all the complexity of the factual and legal issues, the overall duration of the trial and the proceedings of the court, public prosecutor or other state body, the nature and type of the subject of the trial or investigation, the importance of the subject of the trial or investigation for party, the behavior of the parties during the procedure, especially respect for procedural rights and obligations, then respect for the order in which the case is resolved and legal deadlines for scheduling the hearing and the main searches and making decisions.
From the above, we can conclude that the existence of a violation of the right to trial within a reasonable time is not only relevant for the duration of the procedure, but also takes into account other circumstances, from the complexity of the procedure to the activities of the subjects and procedural discipline, and bearing in mind the above, it remains to be seen whether are the provided remedies effective for speeding up the procedure, are the monetary compensations awarded adequately measured as satisfaction to the parties whose rights have been violated, and will these funds contribute to the resolution of the backlog of cases, make our judiciary faster and more efficient, and most importantly, increase citizens' trust in our judiciary.
Contact: Milena Šejnanović, Associate at IVVK in cooperation with Lexquire
E-mail: milena.sejnanovic@ivvk.rs
16/10/2023
