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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Each of the factors shall be considered
separately and their cumulative effect shall be
assessed therein afterwards.
1. THE COMPLEXITY OF A CASE
“In criminal, as well as civil cases, in order
not to establish a violation, a State shall prove
that the length of proceedings was preconditioned
by the complexity of the case”. 31
Even more, “the Court considers the complexity
of the case before assessing the conduct
of the State bodies or of an applicant”. 32
When assessing the complexity of the
case the factors such as the aspects of the
law, as well as volume of evidence, a number
of the charges or the accused, the necessity
of acquiring the expert opinions, receiving the
witness statements from abroad, unification of
the cases in one proceeding, are taken into
consideration”. 33
As mentioned already, one of the most
important factors taken into consideration by
the Court when assessing the complexity of
the case is a number of the participants of the
proceedings.
For example, in the case Union Almentaria
Sanders S.A. v. Spain the Government submitted
that the case was fairly complex, as
there were several defendants, against whom
different claims were being made. The European
Court underlined that only one of the
defendants appeared before the Court of First
Instance and none of them before the Court
of Appeal which simplified the task of those
courts”. 34
In the case Angelucci v. Italy the court concluded
that the case was undoubtedly of some
complexity owing to the number of accused”. 35
A State can cite the complexity of a case
as a justification only in extremely exceptional
situations, when such circumstances are revealed
that are unusual for the court practice
and its prediction in advance is impossible.
A number of plaintiffs and accused may
be high in many instances and the court shall
be therefore accordingly prepared for that.
One of the easiest ways out of the situation is
separation of proceedings or consideration of
a case by several judges. Citing the problem
which is subjected to regulation can not be
considered as a justification.
Along with studying legal issues and factual
circumstances of the case, the European
Court pays due attention to the procedural
matters. The number and the duration of the
employed procedural actions and measures
undertaken do indeed determine the complexity
of the case.
In this respect the case of Foti and others
v. Italy is of a particular interest. In its submission
the Government asserted that the preliminary
investigation involved a large number
of measures. The Court noted that the offences
of which the applicants were accused can
in themselves scarcely be described as complex.
As offences committed in public and established
on the spot, they should not have
given rise to a difficult process of preliminary
investigation. Furthermore, except in the second
Foti case, they were dealt with at one jurisdictional
level alone. The applicants’ cases
were thus not especially complex”. 36
One of the interesting cases of the complex
cases is parallel proceedings in both –
civil and criminal cases:
In the case Gunter v. Turkey the Respondent
Government submitted that the applicant's
case was a complicated inheritance dispute.
There were two proceedings pending at
the same time. The case could not have been
essentially considered until the case concerning
the certificate of inheritance was not finalised.
The Court observed that the proceedings
were not complex. 37
In the case Boddaert v. Belgium the Strasbourg
Court did not consider the term of six
years and three month unreasonable, as the
complex circumstances related with the murder
and a parallel investigation of two cases
were involved. 38
Conducting the parallel proceedings is the
factor, which can be justly referred to by a state
when claiming the complexity of the case.
The instances of maintaining by a Government
of complexity of the proceedings due
to the fact that there was a need of the expert
evidence are frequent.
In the case Vernillo v. France the Respondent
Government was alleging that the case
was complex. One of the reasons for that was
the need to seek an expert opinion. The Court
did not agree with the position. 39
In the case Nowicky v. Austria the applicant
was requesting the issuing of a licence
to produce the medicament. The Government
argued that the proceedings were complex
namely in that their very nature necessitated
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