DISSENTING OPINION OF JUDGE POWER-FORDE

I disagree with the majority ’ s finding of a violation of the applicant ’ s right to a trial within ‘ reasonable time ’ . Although, increasingly, it has been the practice of this Court to find violations of Article 6 § 1 in cases involving length of proceedings that are similar to the instant one, it is a practice which I can neither condone nor endorse (see Gheorghe and Maria Mihaela Dumitrescu v. Romania , no. 6373, 29 July 2008 ; Gouttard v. France , no. 57435/08 , 30 June 2011 ; Yuryeva and Yuryev v. Ukraine, no. 3431/03 , 31 July 2012) . That is not to say that I accept that delays are endemic in every legal system and have to be tolerated. I do not. To my mind, however, a stricter application of the principles already developed in the Court ’ s case law is required.

The Court ’ s earlier approach to such ‘ unreasonable time ’ claims was to conduct a careful and more rigorous analysis of what, precisely, had taken place as the litigation progressed through the domestic courts in order to see whether the responsibility lay with the respondent state for a violation of a ‘ fundamental ’ Convention right. This approach can be found in cases, such as, Buchholz v. Germany , 6 May 1981, Series A no. 42 ; Malicka-Wasowska v. Poland ( dec .), no. 41413/98, 5 April 2001; and Potas v. Poland ( dec .), no. 42615/98, 1 October 2002. On several occasions, after such analysis, complaints have been declared inadmissible notwithstanding that the duration involved was similar to or, at times, far greater than, the one at issue in the present case.

Latterly, there has been a growing tendency to take a ‘ broad brush ’ approach to ‘ length of proceedings ’ claims—to look at the overall period of proceedings and, with very little analysis of what, in fact, transpired at national level, to conclude that a given period was ‘ unreasonable ’ . Such an approach has been adopted in the instant case. One may argue that time and resources prevent this Court from conducting a closer scrutiny of every claim and that a summary approach to ‘ length of proceedings ’ claims is, therefore, justified. I disagree and am unable to accept this approach for several reasons.

Firstly, to find that a State has breached an international treaty is a serious matter. Every case stands alone and a prior and detailed examination of all the relevant events that occurred during the course of the litigation is an essential element in any judgment that censures a State for violating an individual ’ s fundamental human right. The case law reiterates that the reasonableness of the length of proceedings must be assessed “in the light of the circumstances of the case”. To my mind, the actual circumstances of a case which takes several years to litigate at national level, cannot, quite frankly, be analysed or appreciated in a few short lines. Absent an actual examination of what transpired during the relevant years, I cannot conclude that the respondent State has violated Article 6 §1 of the Convention.

Secondly, delays or adjournments are not necessarily, in themselves, indicative of a system ’ s failure. In assessing the reasonableness of the overall length of proceedings, the cause of each delay must be ascertained before laying responsibility therefore at the door of a respondent State. A witness may be unavailable, another may fail to appear; additional expert evidence might be required; preliminary or interlocutory motions may have to be heard; appeals may have to be lodged and remittal orders may be required; a judge may be unavailable because an earlier case exceeded its estimated time. All of these realities must be factored in to this Court ’ s assessment and only where there is an obvious tolerance of unreasonable delays on the part of the State should a violation be found. It also has to be remembered that sometimes it suits a party to litigation to simply ‘ drag his heels ’ or to ‘ let matters lie ’ . I accept that a State is responsible for organising an effective and efficient judicial system. However, I also take the view that individuals are responsible for themselves and must bear the consequences of their own freely chosen action or inaction.

Thirdly, while the factors to which reference should be made when assessing the reasonableness of the length of proceedings are clear (see Frydlender v. France [GC], no. 30979/96, ECHR 2000 ‑ VII) a far stricter analysis of each factor should be conducted before a violation is found. The complexity of the matter, the conduct of the relevant parties and the importance for the applicant of the issue at stake should be weighed in the balance and considered, carefully. As an international body, this Court should be cautious in declaring that a case heard at national level was not complex. Such a matter is often difficult to assess when far removed from the ‘ cut and thrust ’ of litigation. The conduct of the parties should be scrutinized, strictly, and, to my mind, an applicant should, generally, have made at least some effort to advance the proceedings at national level. When it comes to what was ‘ at stake ’ , the facts, to my mind, should disclose that the delay was such as to bring the matter ‘ within the zone ’ of procedural injustice from the applicant ’ s perspective. The administration of justice is, at the end of the day, what courts are all about.

Applicants are entitled to have a trial within reasonable time, not within perfect time. Absent a detailed consideration of what, in fact, transpired at national level and in the light of such facts as can be ascertained from the judgment, I cannot agree that there has been any violation of the Convention.

[1] Rectified on 21 March 201 3 : the text was " second"

[2] The words “and Article 13 ” inserted through rectification of 21 March 2013