SUMMARY
Registration No. 412/01
Muharrem Sadiku
against The Municipal Court in Gjilan/Gnjilane
29 April 2002
In this case, the Ombudsperson found that the failure of the Municipal Court in Gjilan/Gnjilane to communicate a decision of the District Court of 19 January 1999 to the applicant until 28 January 2002 constituted a violation of his right to a fair hearing within a reasonable time, as guaranteed under para. 1 of Article 6 of the European Convention on Human Rights. The Ombudsperson also found that the absence of any remedy for the violation of the right to a fair hearing within a reasonable time, as guaranteed under Article 6 of the European Convention on Human Rights, also constituted a violation of the right to an effective remedy under Article 13 of the Convention.
With respect to the violation of Article 6 of the Convention, the Ombudsperson noted that the length of proceedings in a civil case is normally calculated from the time of the initiation of the court proceedings to the time when the case is finally determined and/or the judgment has been executed. The Ombudsperson also noted that one of the factors to be taken into consideration when determining the reasonableness of the length of proceedings is the conduct of the competent administrative and judicial authorities. In this regard, it is the responsibility of the courts to organise their work in such a way that individuals are apprised of the progress and outcome of their cases in a timely fashion. In the present case, the decision of the District Court of 19 January 1999 was not communicated to the applicant until three years later. Even taking into account disruptions to the judicial system stemming from the 1999 conflict, the applicant had exercised due diligence since the end of the conflict to try to obtain information about the status of his case. The excessive delays in providing the applicant with the decision in his case could thus be attributed exclusively to the responsible judicial authorities. There was therefore a violation of the right to a fair hearing within a reasonable time guaranteed under para. 1 of Article 6 of the European Convention on Human Rights.
With respect to the violation of Article 13 of the Convention, the Ombudsperson stressed that excessive delays in the administration of justice in respect of which litigants have no remedy constitutes a threat to the rule of law within a domestic legal order. He also noted that the effect of Article 13 is to require the provision of a domestic remedy to deal with the substance of an `arguable complaint' under the Convention and to grant appropriate reli ef. Any such remedy must be effective in practice as well as in law. In connection with a complaint about unreasonably long proceedings, an `effective remedy' in the sense of Article 13 would either have to have been able to prevent the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. The Ombudsperson noted that no specific legal avenue existed whereby the applicant in the present case could have complained about the length of proceedings with any prospect of obtaining either preventive or compensatory relief. There was therefore a violation of the right to an effective remedy guaranteed under Article 13 of the European Convention on Human Rights.
The Ombudsperson recommended that the Special Representative of the Secretary-General of the United Nations, should, no later than 31 May 2002, issue a formal instruction to all courts operating in Kosovo: 1) to review the files of all cases for which decisions and/or judgments were issued during 1998 and 1999; 2) to document the communication of such decisions and judgments to the relevant parties; and 3) to complete these tasks within a reasonable time, in light of the requirements of Article 6 of the European Convention on Human Rights. He also recommended that, by the same date, the Special Representative of the Secretary-General issue a Regulation providing for an effective remedy in the sense of Article 13 of the European Convention on Human Rights.
There has been no response to this Report. However, at the end of April 2002, the Director of the Department of Justice provided the Ombudsperson with a copy of an undated Circular sent to the Presidents of all courts in Kosovo, asking them to conduct a review of all court files containing judgments or decisions from 1999 or before in order to ensure that any such judgments or decisions be communicated to the relevant parties by 31 May 2002.
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