DISSENTING OPINION OF JUDGE MYJER

I do not agree with the majority that in this case the reasonable time provision has been violated.

Indeed, not only the total length of the proceedings at the national level should be taken into account but also what was at stake.

When comparing the way this case was handled at the national level with what happens in many other cases, I cannot but conclude that – apparently precisely because of what was at stake – the national authorities acted with particular diligence. After pre-trial investigations the criminal case, in which the mother of the applicant claimed damages, was set down for trial by the public prosecutor six months after the accident (7 D ecember 2000). Exactly one year after that d ate – less than eleven months after the first hearing – the court of first instance pronounced its judgment (7 December 2001). In the meantime fourteen hearings had been scheduled, of which ten were adjourned. T hat fact alone makes it clear that the national courts apparently did not want to lose extra time and showed particular diligence. Three and a half months later (26 March 2002) the regional court dismissed the appeal lodged by the applicant ’ s mother. A further three mo nths later (25 June 2002) the C ourt of A ppeal upheld the appeal lodged by the applicant ’ s mother and T.M. The case was sent back to the court of first instance. In the second half of 2002 six hearings were scheduled but adjourned at the request of T.M. or the insurance company. Still, seven months after the judgment of the court of appeal the court of first instance delivered another judgment (23 J anuary 2003). Three and a half months later (8 May 2003) the regional court rejected the appeal lodged by the applicant ’ s mother. Six and a half months later (20 November 2003) the court of appeal quashed the previous judgment and sent the case back for retrial. After the retrial, judgment was delivered on 3 March 2004. Three and a half months later (27 May 2004) the final judgment was given.

This means that in total eight judgments were given by three instances within a period less than three and a half years.

Of course I am aware of the ” anti - ping pong reasoning ” of this Court, where it has considered that , although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, among other authorities, Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003). But, in my opinion, that has not been the case here. Whenever a remittal was ordered, at all levels the national judges apparently did their best to give a speedy judgment.

In these circumstances I consider it a wrong signal to the national judges to conclude that at the national level the reasonable time provision has been violated.

I remember well the commentaries at the national level when, in the Court ’ s judgment of 13 July 1983 in the case of Zimmerman and Steiner v. Switzerland (Series A, no. 66), it took the Commission and the Court almost four years to conclude that a term of nearly three and a half years at one national level amounted to a violation of the reasonable time requirement.

DISSENTING OPINION OF JUDGE POWER

In June 2000, when she was five years old, the second applicant was seriously injured in a road traffic accident. She suffered total paralysis of her lower limbs and required lengthy hospitalisation. The enormity of the loss that she and her parents suffered is inestimable. Criminal proceedings ensued and in the context thereof a civil claim for damages was lodged. The applicants complain that the length of those proceedings was incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The proceedings lasted three years, four months and twenty days and covered three levels of jurisdiction. The question before this Court is whether that period was so unreasonable as to constitute a violation of the applicants ’ fundamental human right to a trial within a reasonable time.

Article 6 § 1 of the Convention guarantees that right. In civil cases, it underlines “the importance of rendering justice with out delays which might jeopardis e its effectiveness and credibility”; ( see H . v. France , judgment of 24 October 1989, Series A no. 162 ‑ A and Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999 ‑ II ) . I am in agreement with the majority that the nature of the dispute herein called for particular diligence on the part of the domestic courts. However, I do not share their view that the length of proceedings was so excessive as to constitute a failure to meet the “reasonable time” requirement of Article 6 § 1.

Adversarial proceedings, by their very nature, take time. Litigation is a complex business even when the facts of a case may not be particularly complicated. Consultations must be convened, pleadings drafted and delivered, documents filed and stamped, interim applications made, expert reports obtained, witnesses interviewed, court lists organised, trials conducted, appeals taken and, ultimately, final judgments delivered. The procedural safeguards within that process – such as, for example, the right to apply for an adjournment where additional relevant evidence is required – are not mere peripheral matters of case management. They go to the very heart of a fair trial.

In this case, significant injuries were sustained by the second applicant and contentious litigation ensued because legal liability for the cause of those injuries was, quite evidently, in issue. In the course of those proceedings an important additional party was joined. Expert medical evidence, presumably, from a number of paediatric specialists, was required. Various appeals were lodged. All of these measures, undoubtedly, took time but none of them was unimportant in the overall objective of the pursuit of justice. In complaining about the length of the proceedings, reference is made, inter alia , to the fact that ten of the fourteen hearings held in 2001 were adjourned and that on two occasions judgments were quashed due to procedural errors. Undoubtedly, these events extended, somewhat, the overall duration of the proceedings but it is an unfortunate fact of life (and of legal systems) that adjournments are necessary and that errors, though regrettable, occur and require rectification. Eight of the ten adjournments in 2001 were for reasons relating to the absence of witnesses or expert reports, for the purpose of hearing new witnesses and for ordering a new expert report. These appear to be entirely legitimate grounds for adjournment, not directly imputable to the Government. To have proceeded in the absence of relevant evidence would have served neither the interests of the applicants nor the administration of justice, generally.

Medical witnesses are not always available to attend court on fixed dates as their primary professional commitments oblige them to be elsewhere. A considered prognosis is a prerequisite for any assessment of quantum thus necessitating the preparation of updated reports. These are not incidental factors giving rise to unnecessary delay. They are the practical realities involved in contentious litigation concerning causation and damage in serious personal injury actions. Of course, particular urgency will be required where it is established that delay is likely to have an adverse effect upon an applicant ’ s health. There is no indication, however, in this case, that the delay alleged adversely affected the second applicant ’ s health. There is no intimation that she was deprived of medical treatment whilst awaiting the monetary compensation to which she was entitled.

It is entirely understandable that to each individual claimant his or her case is unique and its resolution of immediate and vital significance. In assessing the reasonableness of length of proceedings, however, one cannot overlook the fact that the domestic courts are dealing with thousands , if not hundreds of thousands , of cases at any given time. The requirement of “reasonableness” in Article 6 § 1 implies that domestic legal systems and the registries and registrars that support them are given adequate time to deal with cases in a meaningful manner, to respond to developments as they occur, to allow for adjournments where fairness so requires and, ultimately, to manage, hear and determine cases in a manner consistent with the requirements of justice .

I do not want to be taken as acquiescing in the proposition that regular delays are endemic in every system and must, of necessity, be tolerated. Excessive delays endanger respect for the rule of law and I reaffirm the importance of administering justice in a manner that does not jeopardise its effectiveness and credibility ( see Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999 ‑ V ).

The proceedings in this case involved serious personal injuries, the liability for which was contested. They spanned three levels of jurisdiction and lasted three years, four months and twenty days. In finding that this duration constituted a violation of Article 6 § 1, there is a danger of imposing unattainably high standards upon domestic courts. If we make it

so impossible for States to organise their legal systems in a workable manner by imposing excessively restrictive time limits within which cases must be resolved, then we run the risk of compromising the proper administration of justice for the sake of speed and expediency. In such an event, the fabric of a democratic society is weakened. Justice delayed may be justice denied but that must be balanced by a recognition of the reality that its proper administration requires a reasonable time. In my view, the time involved in this case was not so unreasonable as to constitute a violation of Article 6 § 1.