The efficiency of court proceedings is one of the major challenges national justice systems have to deal with. Efficiency in the administration of justice is a major component of fair trial and effective remedies.

Undue delays by a court or any other adjudicating authority constitute a breach of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights, which provide that a court or any other adjudicating authority must be independent and impartial and shall also ensure that any person is given a fair hearing within a ‘reasonable time’.

In a Constitutional judgement delivered on January 11, 2023 by the First Hall of Civil Courts in the names ‘Mark Micallef v the State Advocate’ the court presided by Madam Justice Anna Felice dealt with a request by the plaintiff, demanding an appropriate and effective remedy for having his fundamental rights as protected under article 39 of the Constitution and article 6 of the Convention breached.

The case was over rent payment. A landlord, Ġiljan Agius, had instituted a court case against the tenant, Mark Micallef.  The two had disagreed over the interpretation of the rental agreement and the amount due. The first court had ruled against Micallef, ordering him to pay Agius close to €35,000, equivalent to the first year of lease which Micallef had terminated earlier than agreed. An appeal court upheld that judgment in 2020. Micallef then applied for compensation, saying that as a result of delay for which he was not to blame, he had to pay Agius €50,315 in interest alone.

The court after having analysed the evidence and the note of submissions of both parties, referred to the textbook ‘Protecting the right to a fair trial under the European Convention on Human Rights and also to a number of foreign and local jurisprudence and concluded, that the term ‘reasonable time’ should be assessed by a cumulative test involving three main criteria:

• The nature and complexity of the case;
• The conduct of the applicant;
• The conduct of the authorities.

The complexity of a case may justify a longer delay. That could include a criminal case involving a vast number of charges or a large number of defendants, complex cases concerning tax evasion, company fraud or money laundering or cases resulting in legal complexities.

Conduct of the parties vs delays by the authorities

The court said that the government could not excuse the overall length of proceedings by citing the applicant’s appeals, motions, requests etc because the defence could not be blamed for taking full advantage of the resources and tools afforded by national law in the defence of his interests (Kolomiyets v Russia).

Reasonable diligence was required by the authorities in each procedural step, such as filing evidence and submitting observations, in all criminal cases and when they were one of the parties in a civil case (Baraona, §§46- 57).

Where another private party has caused a delay in a civil case, the court had to take steps to expedite the proceedings and not to extend time-limits at the party’s convenience without good reason (Guincho).

Even in pursuing the interest of the protection of defence rights, such as the need to summon witnesses on behalf of the defence at trial, the authorities may be in breach of the ‘reasonable time’ requirement if they did not carry out the task with reasonable diligence (Kuvikas v. Lithuania, §50).

General delays caused occasionally by the courts’ caseload may be acceptable as long as they were not prolonged in time, and where reasonable steps were taken by the authorities to prioritise cases based on their urgency and importance (Zimmerman and Steiner, §§27-32).

At the same time, the contracting states were required by Article 1 of the European Convention to organise their legal systems so as to ensure compliance with Article 6, and no reference to financial or practical difficulties could be permitted to justify a structural problem with excessive length of proceedings (Salesi, §§20-25).

Circumstances where a case was repeatedly re-opened or remitted from one court to another (the so-called yo-yo practice) constituted a serious aggravating circumstance, which may result in a violation being found even if the overall duration of the proceedings does not seem excessive (Svetlana Orlova v. Russia, §§42-52).

No fixed time limit for proceedings

The court also remarked that in order to determine if a particular person had his rights breached through delays, it was imperative that each case was assessed on a case-by-case basis and there should be no fixed time limit for any particular type of proceedings.

Any person had the right to a proper hearing and the proceedings must be expedient without undue delays, thus resulting in a more efficient and effective justice system.

It was the responsibility of the State to ensure an adequate and expedient judicial process.

The court observed that the case before it did not appear to be a complex or a complicated one. Nevertheless, the definitive judgement, was delivered after seventeen years, five months and eight days.

It took eight years for the first court to deliver its judgement, from 20th April 2006 till 18th September 2014. Subsequently, the judgement was appealed, and it took another five years for the Court of Appeal to appoint the case for hearing and to deliver its judgement.

Therefore, the applicant had suffered a violation of his fundamental right for a fair hearing within a reasonable time.

The State Advocate was ordered to pay €35,542 in interests accumulated because of the undue delay, as well as a non-pecuniary compensation amounting to€2,000, with costs to be borne by the State Advocate.

Dr Frank Anthony Tabone is an associate at Azzopardi, Borg and Associates.