Computing the length of the proceedings

In computing the length of the proceedings, in principle, one takes into account only the period after the entry into force of the Constitution of BiH, i.e., of Annex 6 to the GFAP, although the length of the proceedings prior to that date (14 December 1995) is not completely irrelevant; that period of time has a bearing on answering the question as to which stage the proceeding had reached as of 14 December 1995 and how long it had already taken up until that date.¹²⁵¹ Irrespective of this, in civil proceedings the length of the proceedings is computed starting from the date of filing the civil action, and ending as of the day of the completion of the proceedings.¹²⁵² In case a party to the proceedings changed, for instance if the plaintiff had passed away, the length of the proceedings would not be computed starting from the beginning of the proceedings.¹²⁵³

The crucial moment for computing the reasonability of the length of the administrative proceedings has not been regulated uniformly in the case law of the BiH Constitutional Court, Human Rights Chamber for BiH and the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina. According to the BiH Constitutional Court, filing a civil action in an administrative dispute is of crucial significance, as the right to proceedings within a reasonable time relates only to judicial administrative proceedings, and not to a procedure before administrative authorities. Nevertheless, the length of the proceedings before administrative authorities may be relevant when deciding on the reasonable length of the proceedings.¹²⁵⁴ The Human Rights Chamber for BiH and the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina follow, however, the case law of the European Court, according to which the computing of the reasonable length of the proceedings includes the length of the proceedings before administrative authorities.¹²⁵⁵ For, the State is obliged to organise its legal system in such a manner so that the rights falling within the scope of Article 6 of the ECHR are protected effectively. Therefore, the very Convention makes no distinction, which the domestic legal system makes, between the proceedings before the courts and the procedures before administrative authorities.¹²⁵⁶ Subsequently, the BiH Constitutional Court changed its legal position, and started computing the reasonableness of the duration of the proceedings from the moment of the institution of administrative proceedings.¹²⁵⁷

In criminal proceedings the crucial moment for computing the reasonability of the length of the proceedings is the moment when the damaged person has become aware of the fact of being formally suspected of a certain criminal act (“charge” within the meaning of Article 6, paragraph 1 of the ECHR), for as of that moment it is in his/her interest for the proceedings to be completed without delay by a decision of his/her innocence, or guilt. Thereby it is irrelevant whether the charge has been made in formal and legal terms or not, or if the suspect has been arrested.¹²⁵⁸ In the event that the suspect is on the run, even when the fugitive is aware of the fact that he has been charged with certain things, the time limit for computing the reasonability of the length of the proceedings shall start running from the moment of his availability to the authorities, i.e., when arrested or brought before the investigating judge.¹²⁵⁹ The length of the proceedings is separately computed for a private prosecutor if it concerns his right to compensation for damage in the criminal proceedings; in which case the crucial moment is the filing of such a request with the criminal court regardless of the fact whether it is already ongoing or not.¹²⁶⁰ The time limit shall stop running once the proceedings are completed, during the course of which a decision has been made on the well-foundedness of the indictment against a certain person.¹²⁶¹ Usually that is the day of delivery of the first instance judgment, that is to say not the judgment by which the appellate proceeding has been completed.¹²⁶² In case the proceedings have not been completed in such a manner, the length of the appellate proceeding may affect a decision on the reasonable length of proceedings.¹²⁶³ If the law provides for a certain date by which the proceedings must be completed, failing to comply with the respective deadline shall automatically constitute a violation of the right to proceedings within a reasonable time.¹²⁶⁴