DISSENTING OPINION OF JUDGE LOUCAIDES

I am unable to agree with the majority that there has been a violation of Article 6 § 1 in this case on account of the length of the proceedings.

It is true that according to the case-law of the Court , the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. But there is no absolute or objective limit to the length of time that can be taken. The question whether there has been a delay contrary to the requirements of Article 6 § 1 cannot be decided in abstracto with reference only to the total length of the proceedings. Whether there has been an unreasonable delay is a matter that must be assessed in the light of the particular facts of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).

A breach of Article 6 § 1 can only be found where it is established that there have been delays attributable to the State regardless of the total length of proceedings. Thus, in the case of Ciricosta and Viola v. Italy (judgment of 4 December 1995, Series A no. 337 - A), in which the period in issue was more than 15 years for civil proceedings that were still pending at the time of the judgment, the Court held:

“even though a period of more than fifteen years for civil proceedings that are still pending may, on the face of it, seem unreasonable, the conduct of the applicants ... leads the Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded”. (p. 11, § 32)

In the same case the Court stated the following:

“The Court reiterates in the first place that only delays attributable to the State may justify a finding of failure to comply with the ‘reasonable time’ requirement”. (p. 10, § 28)

The majority admit that the subject matter of the case under consideration involved a degree of complexity. However , the judgment does not proceed to deal with any other specific aspect of the case. Indeed, the majority state: “In this instance [the particular] circumstances of the case call for a global assessment. The Court does not deem it necessary to consider the question in such detail (see, among other authorities, the Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, pp. 23 ‑ 24, § 72; the Ferraro v. Italy judgment of 19 February 1991, Series A no. 197, pp. 9-10, § 17)” (see paragraph 33 of the judgment) [1] . The majority concluded as follows:

“However, it notes that twenty-five years after the litigation started, the case is still pending. Such an inordinate delay in deciding the case cannot be justified by its complexity or the sometimes menacing and unacceptable attitude displayed by the applicant. It follows that, having regard to the state of the case on 1 May 1993, the Court cannot regard as ‘reasonable’ the subsequent lapse of time of eight years and over seven months.

There has therefore been a violation of Article 6 § 1 of the Convention in the present case”. (§ 34)

The majority do not point out any particular period of time which may be regarded as an unreasonable delay attributable to the State during the period under consideration, i.e. 8 years and over 7 months since 1 May 1993. And indeed, I myself have been unable to identify any such delay. I believe that the conduct of the relevant authorities was not in this case primarily responsible for the length of the proceedings. It was the conduct of the applicant throughout the proceedings which contributed decisively to their length. A mere perusal of the facts of the case as they appear in the judgment supports this conclusion.

But there is another flaw in the approach of the majority which has affected the result. In the reasoning of their conclusion the majority note that “twenty-five years after the litigation started, the case is still pending” and describe this situation as “an inordinate delay”. It is therefore obvious that the majority have given more weight than they were entitled to give to the length of the proceedings which took place before 1 May 1993 (when Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect), i.e. seventeen years.

It is true that the Court was entitled to have regard to the state of the proceedings in the case on 1 May 1993, but I believe that this does not mean that the Court can take into account the length of the proceedings before that date in a way that will reflect negatively on the conduct of the respondent State. Nor can the Court include that period as part of the overall length in respect of which it is expected to pass judgment under Article 6 of the Convention. The contrary view would lead , directly or indirectly , to an impermissible extension of the Court’s jurisdiction ratione temporis .

In my opinion, the majority did in fact include the period before 1 May 1993 as part of the overall length taken into account in finding that there had been an “inordinate delay in deciding the case”, without examining that period on the basis of the criteria relevant to the question of reasonableness of the length of proceedings – an examination which was in any event precluded on account of the Court’s lack of jurisdiction ratione temporis.

For all the above reasons, I find that there has been no violation of Article 6 of the Convention in this case.

[1] However, in both cases cited it appears from the facts that there were periods of inactivity attributable to the Government (see, for example, the Ferraro judgment, § 17).