08 Nov Protection of the right to a trial within reasonable time

The right to a trial within a reasonable time is one of the key elements in ensuring the efficiency of the judicial system and legal certainty. The right to a fair and public trial within a reasonable time before an independent, impartial, and law-established court is guaranteed by Article 32 of the Constitution of Montenegro and Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Furthermore, this right is protected and ensured within the framework of legal proceedings, in accordance with the Law on the Protection of the Right to a Trial within a Reasonable Time, which came into force in 2007.

The European Court of Human Rights, in interpreting the guarantee of the right to a trial within a reasonable time under Article 6 of the ECHR, has emphasized the exceptional importance of delivering judicial decisions without undue delay. This guarantee is crucial as it ensures the efficiency and credibility of legal decisions, as highlighted in the judgment in the case of H v. France in 1989. Moreover, when assessing whether this guarantee has been respected, only delays directly attributable to the state, or those resulting from the actions of its authorities, are taken into account, as defined in the case of Napijalo v. Croatia in 2003. These delays, which are considered the responsibility of the state, include delays in conducting court proceedings in civil cases, as established in the judgment in the case of Zimmerman and Steiner v. Switzerland in 1983.

The situation in the Montenegrin judicial system has become more challenging due to the increasing number of cases and the growing number of vacant judicial positions. Currently, there are 31 vacant judicial positions in Montenegrin basic courts, which represent a significant share of 21%. For instance, there is currently no sitting judge in the Basic Court in Žabljak following the retirement of the sole judge who was also the court’s president, due to meeting the conditions for retirement. Additionally, in most of the basic courts in Montenegro, more than half of the designated judicial positions are currently vacant.

These vacant positions have a significant impact on the timeliness of the judicial system, with scheduling court hearings taking several months, postponements of hearings up to four months, and the delivery of judicial decisions often delayed. The situation becomes even more complicated as urgent cases are postponed, leaving citizens without answers to their legal needs. This issue, combined with numerous internal and external factors, leads to prolonged and exhausting legal disputes, ultimately resulting in a gross violation of citizens’ right to a trial within a reasonable time.

With consideration of these circumstances, we have opted  to analyze the existing mechanisms for protecting the right to a trial within a reasonable time in Montenegro.

The right to a trial within a reasonable time is guaranteed to the citizens of Montenegro by both international and national regulations, the Law on the Protection of the Right to a Trial within a Reasonable Time stipulates in Article 1 that “The protection of the right to a trial within a reasonable time, as well as the fair satisfaction for the violation of the right to a trial within a reasonable time, is realized in judicial proceedings.”

Therefore, the law provides two legal remedies available to citizens:

• 1. Request for Expedited Proceedings

Request for Expedited Proceedings  is a control request submitted to the president of the court in which  the case is being heard. The decision on the control request is made by the president of the court, or, in courts with more than ten judges, a judge designated to decide on control requests in addition to the president. If the president of the court does not reject the control request as incomplete or as clearly unfounded, they will request the judge assigned to the case to provide a written report on the duration of the proceedings and the reasons for the delay within 15 days, at the latest. When the president of the court finds that the proceedings and decision-making are unduly delayed, they will issue a decision setting a deadline for specific procedural actions, which cannot exceed four months, and an appropriate deadline for the judge to inform them of the actions taken. The president of the court may order the priority handling of the case if the circumstances of the case or the urgent nature of the case require it. The president of the court must decide on the control request within 60 days from the date of receiving the request, and the decision is delivered to the party. In cases where other state authorities obstruct the proceedings, the president of the court may instruct those authorities to act upon the request and take measures against those who do not comply with the instructions.

While the primary goal of the control request is to expedite proceedings in cases where a party believes their right to a trial within a reasonable time has been violated, there are concerns about the efficiency of this mechanism in practice. These concerns stem from the timeframes of the process, as the president of the court has a statutory period of 60 days to decide on the control request, and the appointed judge has a four-month period for action. Furthermore, if the case is reassigned, it may lead to further procedural delays due to the need to familiarize a new judge with the case and, in some cases, the reimplementation of the evidence procedure. As a result, the application of this mechanism, although aimed at expediting proceedings, often leads to further delays, which could be addressed by setting shorter timeframes for action by the court president and the appointed judge, ultimately improving the efficiency and justification of this mechanism.

• 2. Lawsuit for Just Satisfaction

A lawsuit for just satisfaction is  filed with the Supreme Court of Montenegro and may be filed by a party that has previously submitted a control request to the competent court, deepening the issues raised regarding the control request, and by parties who objectively could not submit a control request. However, this law does not specify the objective reasons why a party may be unable to submit a control request. The lawsuit is filed with the Supreme Court within six months from the date of receiving the final decision made in accordance with the provisions of Article 2 of this law or, in the case of enforcement proceedings, within six months from the date of receiving the final decision based on the control request.

Unlike the control request, a Lawsuit for Just Satisfaction does not have an expediting effect on the proceedings as such an effect is not envisaged. Its primary purpose is the compensation of damages caused by the violation of the right to a trial within a reasonable time, either through a specific monetary amount ranging anywhere   €300.00 to  €5,000.00, or by issuing a judgment stating that the party’s right to a trial within a reasonable time has been violated.

In this regard, the critical shortcomings of the existing legal framework manifest themselves in the absence of a uniform criterion by which the Supreme Court panel calculates the compensation amount for the harm caused by a breach of the right to a trial within a reasonable time and in determining the justification for any potential failure to submit a control request.

Given the foregoing, it is evident that due to the current state of the Montenegrin judicial system, violations of citizens’ right to a trial within a reasonable time occur all too frequently. This prompts the question of whether the insufficient number of judges constitutes a justifiable reason for the gross infringement of citizens’ rights. In this context, we are of the opinion that reforms should be undertaken, encompassing proactive measures for the appointment of judges in cases where there are clear indications of upcoming judicial vacancies (such as retirement or the appointment of judges to other courts), as well as potentially reducing the duration of the judges’ training process.

Furthermore, we are of the view that the legal mechanisms established by law to protect the right to a trial within a reasonable time do not represent the most efficient means for primarily safeguarding the rights of citizens and subsequently compensating for the damage incurred as a result of the violation of these rights.