ii. Criteria as to the reasonable length of proceedings

The reasonable length of proceedings shall be judged on a case-by-case basis. It depends, first and foremost, on the complexity of each individual case, the conduct of the parties to the proceedings, courts and State institutions,¹²⁶⁵ on the importance of a decision for an individual, as well as on other circumstances.¹²⁶⁶ The formal identification of proceedings as “urgent” through explicit legal provisions has a special role.¹²⁶⁷

The complexity of a case shall be established based on the seriousness of the substratum of facts to be assessed, the number of parties to the proceedings, the quantity of evidence to be exhibited, and in particular based on the number of witnesses; thus, other facts-related or legal aspects of the case may play a specific role.¹²⁶⁸ Delays in contacting and hearing witnesses, in principle, cannot justify an unreasonable length of the proceedings; however, it is necessary to appraise, on one hand, delays in conducting evidentiary proceedings, primarily, the hearing of parties to the proceedings and, on the other hand, the aim and expectations sought to be achieved thereby.¹²⁶⁹ Courts must observe the time limits laid down by law when it comes to undertaking certain procedural actions at different stages of the proceedings.¹²⁷⁰ Should the defendant constantly refuse to participate in the proceedings (for instance, by failing to attend hearings) and the court fails to respond to it by using appropriate legal measures of coercion, the plaintiff can not be blamed for the delays in the proceedings resulting from such failures.¹²⁷¹ In its role of dominus litis, the court cannot accept obstructions of the proceedings by the parties to the proceedings, as it is obliged to use its legal powers, the aim of which is to expedite the proceedings.¹²⁷² A summons addressed to a defendant residing in a neighbouring country cannot serve as justification for significant delays in the proceedings.¹²⁷³ The accused, in principle, has no obligation to support the work of the Prosecutor’s Office for the sake of completing the proceedings as soon as possible. However, if the accused uses procedural instruments in order to slow down the proceedings, such conduct may be relevant in assessing the reasonable length of the proceedings.¹²⁷⁴ Yet, the plaintiff might not claim that the length of the proceedings was unreasonable if he/she alone took the blame for the proceedings, for having failed to provide his/her new address,¹²⁷⁵ or if the civil action had such deficiencies indicating that the court must discontinue the proceedings until such time as the deficiencies have been removed.¹²⁷⁶ Also, objective difficulties, that neither the court nor any of the parties to the proceedings are responsible for, such as, for instance, the non-existence of a bilateral agreement between Bosnia and Herzegovina and Slovenia by way of which the presence of a damaged party in the capacity of a witness may be secured during a trial,¹²⁷⁷ are not of such relevance as to reach a conclusion as to the unreasonable length of the proceedings.

Lack of resources cannot be a justification for the unreasonable length of proceedings, as the State is obliged to organise its judicial system in such a way (including the necessary number of employees) so that courts are able to meet the requirements referred to in Article 6 of the ECHR in relation to the reasonable length of the proceedings.¹²⁷⁸ Also no justification is possible if proceedings conducted by a court have come to a standstill awaiting amendments to a certain law.¹²⁷⁹ Thereby the court not only bears responsibility for the causes originating from within, but also for the delays resulting from the poor functioning of other State institutions, such as, for instance, generating the findings of medical court expertise.¹²⁸⁰ Therefore, if proceedings have been conducted for the unreasonable period of time of 4 years (3.5 years of which is in the post-Dayton period), due to limited resources of the court and awaiting amendments to the law, not even the complexity of the case might justify the respective period.¹²⁸¹ Similarly, the court may not justify an unreasonable length of proceedings on the repossession of property, resulting from the suspension of the proceedings pending the completion of proceedings on a disputed issue before the administrative authorities, with its completion date being uncertain, although the court could adopt a decision on the merits on its own.¹²⁸²

In Case No. U 6/00, the Municipal Court had suspended the proceedings in June 1997. By February 2001 the appellant still had not entered into possession of his apartment, whereby there were no indications as to when the administrative proceedings might be completed. The Constitutional Court referred the case back to the Municipal Court with the instruction to adopt a decision on the merits.

A clear violation of the right to a trial within a reasonable time would exist in a case where the proceedings had taken 12 years in total, five years of which were during the period after the entry into force of the Constitution of BiH, whereby the courts failed to state any reasons whatsoever for which they had failed to conduct the proceedings.¹²⁸³

Given that the protection under Article 6 of the ECHR also extends to the enforcement of a judgment, it is not possible to justify the failure to enforce a decision of eviction for over two years, for the reason that the police constantly failed to protect the court executors from a group of persons aiming at preventing the enforcement.¹²⁸⁴

Even when the courts of first and second instance happen to make a decision in a case relatively quickly, the right to trial within a reasonable time may be violated if the first instance court fails to correct errors identified by the second instance court,¹²⁸⁵ or if the courts prove incapable in adopting a final decision, and instead they constantly quash the lower instance decisions and refer the appellant back to a lower instance court for new proceedings and adoption of a new decision.¹²⁸⁶ The fact that the courts of appeal have the legal possibility to quash a lower instance judgment and to refer the case back for new proceedings, does not amount to a justification for non-compliance with the obligations referred to in Article 6 of the ECHR – to conduct a fair trial within a reasonable time – especially if the possibility exists for the first instance judgment to be modified, for a hearing to be held, or for ordering the main hearing to be held before another panel.¹²⁸⁷ Should the court not be authorised by law to modify by itself the first instance judgment, whereas referring back the case to the first instance court for adoption of a new decision would constitute a violation of the right to a fair trial within a reasonable time, the court of appeal would have the obligation, by referring to direct application of Article 6 of the ECHR, to decide by itself on the case and to complete it. For, the provisions of Article 6 of the ECHR have priority over ordinary legal positive provisions.¹²⁸⁸ The same applies to the administrative courts.¹²⁸⁹

If limited resources cannot serve as a justification for the unreasonable length of the proceedings, still, certain difficulties which the courts in Bosnia and Herzegovina have encountered after the war have to be taken into account.¹²⁹⁰ Should reasonable, quick and appropriate steps be taken in order to remove “bottlenecks” for the proper functioning of the judiciary, such difficulties could be justified by taking into account the social and political situation within the country.¹²⁹¹ To this end, proceedings taking 3.5 years in the period after December 1995 (5.5 years in total) do not have to constitute a violation of Article 6, paragraph 1 of the ECHR.¹²⁹² Also, a temporary burden on the courts in terms of cases might moderate requirements referred to in Article 6, paragraph 1 of the ECHR, should such courts take concrete steps in order to resolve the respective problems.¹²⁹³ Similarly, the reform of the judiciary and amendments to laws, which necessarily entail certain delays in the proceedings, because of amendments to regulations on jurisdiction, procedures and requirements of form, may serve as a justified excuse for the length of the proceedings, for the reason that the courts have to adapt themselves thereto.¹²⁹⁴

Finally, the nature of appellate proceedings involves the fact that a damaged person must wait for a certain period of time for the final decision to be taken.

This makes the proceedings of 3.5 years justified.¹²⁹⁵