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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
THE BEGINNING AND THE END OF THE
TIME TO BE TAKEN INTO CONSIDERATION
According to the Article 28 of the Vienna
Convention on the Law of Treaties, “unless a
different intention appears from the treaty or
is otherwise established, its provisions do not
bound a party in relation to any act or fact
which took place or any situation which ceased
to exist before the date of the entry into force
of the treaty with respect to that party”. 9
The foregone principle also extends to the
European Convention for the Protection of
Human Rights and Fundamental Freedoms.
The Strasbourg Court has mentioned in a number
of cases dealing with the length of the proceedings
that the Convention does not have
a retroactive effect.
In the case Silva Pontes v. Portugal the
Court concluded, that the period to be taken
into consideration for the purpose of the Article
6(1) did not begin to run when the applicant
first brought the civil action before the
relevant court requesting compensation for the
damage of the health on 20 December 1977,
but only on 9 November 1978, when the Convention
entered into force with regard to Portugal.
10
At the same time, “the judgment of the
Court, on whether or not the proceedings have
taken place with the respective speed, after
the Convention entered into force, will be influenced
by the very fact that the case is being
considered for a long time already”. 11 This
connotates that to a certain degree the time
lapsed before the ratification of the Convention
is also taken into consideration.
After the establishing the date of the entry
into force of the Convention with regard to
a particular State, the Court considers the
beginning and the end of the time to be taken
into consideration.
“in criminal matters, the “reasonable time”
referred to in Article 6(1) begins to run as soon
as a person is charged”. 12
“... Charge”, for the purposes of Article
6(1), may in general be defined as "the official
notification given to an individual by the
competent authority of an allegation that he
has committed a criminal offence”. 13
“A person may be charged at the time of
arrest or when preliminary proceedings are
opened”. 14
In the case Wemhoff v. FRG the Court
found, that the beginning of the period to be
taken into consideration must run from 9 November
1961, the date on which the first
charges were levelled against Wemhoff and
his arrest was ordered. It was on that date that
his right to a hearing within a reasonable time
came into being so that the criminal charges
could be determined. The indictment was however
filed only over two years after the pretrial
investigation was completed. 15
Deriving from this, in a criminal case the
starting date for determining the time to be
taken into consideration shall be the date,
when a person for the first time was officially
notified via official sources about the commencement
by the duly authorized state bodies
of certain procedures in his respect. As a
rule, this is the time when a person is charged.
There are also instances when the commencement
of the criminal prosecution, recognition
of a person as suspect, detention or other
procedural action precedes charging. In such
a case any date, which preceded the others,
and when the applicant learned for the first
time that a doubt had emerged in his respect
shall be considered as the commencement of
the term.
In civil cases this issue is solved in the following
manner: if the applicant was a plaintiff,
the calculation of the term shall start from filing
a suit. In cases where the applicant was a
respondent, the time of handing over the court
notification on appearance in court shall be
considered as a starting point for this term.
In the case Guincho v. Portugal the Court
found that the starting point of the relevant
period, reasonableness of which should have
been assessed, was the date proceedings
were instituted before the Court requesting
compensation for health damages. 16
In the case Vernillo v. France the Court
found that the period to be considered began
when the applicants were summoned before
the tribunal. 17
The case Beaumartin v. France is especially
interesting, as the application was filed
in the Paris Administrative Court. It appeared
that the dispute fell outside that court’s jurisdiction
and forwarded the application and the
file to the Conseil d’Etat. The European Court
regarded that the calculation of a reasonable
time should have been commenced from the
moment when the applicant first filed the case,
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