Untitled

E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
the taking of several expert opinions and scientific
research. Furthermore, in the course
of the proceedings at issue the applicant altered
his request for authorisation of the medicament
at issue several times, which made
it necessary to conduct further research. The
Court considered that, due to the above mentioned
reasons, the case was of considerable
complexity. Despite this, the Court held that
there has been a violation of Article 6(1). 40
In the vast majority of cases there is an issue
emerging which requires the expert opinion.
Therefore, if all the cases of this kind are
considered complex and this is referred to by a
State, as a justifying circumstance, this will contribute
to establishing erroneous practice.
The requirements towards the state institutions
shall be especially strict when the problem
was known to a State beforehand and it
had time for preparation.
In the case Vallee v. France in which the
applicant claimed compensation from the Ministry
for Solidarity, Health and Social Protection
did not agree with the submission of the
Government that the case was complex, despite
the fact that paying the compensation
was related with certain intricacy. According
to the Court’s position, “such problems had
been foreseeable and therefore a solution
could probably have been found earlier”. 41
In order to justify their position in some
cases the states refer to the circumstances
such as the non-appearance of the participants
of the proceedings in court, which according
to their explanations, is the reason for
making the case complex.
In the case Konig v. Germany the Court
noted that “the Government could not prove
that the case contained the factual or the legal
complexity. However, it is true that the 4th
Chamber of the Administrative Court encountered
great difficulties in tracing witnesses
several of whom had in the meantime changed
name or address”. 42
In the case Guincho v. Portugal the Government
was claiming that the case was complex
due to the failure of witnesses and lawyers
to appear in the court. The Court did not
agree with the latter view: the circumstances
adverted to by the Government did not complicate
the conduct of the proceedings in a
manner unusual for such litigation. 43
We regard the arguments such as the
courts may be unsuccessful in cases the witnesses
do not appear in a court is not sufficient
for considering the case as a whole to
be complex. Some other components shall
also be present therein.
It is also interesting to consider how the
acts of the charged person may resemble on
the complexity of the case:
In the case Ferrantelli and Santangelo v.
Italy the Government conceded that the total
duration of the proceedings might at first sight
appear excessive, but justified it among others
on the basis of the undeniably complex
nature of the investigation because of the
statements and confessions made and then
retracted by the accused. According to the
applicant’s position, the change of the testimony
of the accused could not have been
considered as the circumstance complicating
the case, due to the fact that the accused is
not obliged to cooperate with the investigation.
The Court in fact agreed with the Government’s
submission that the case was undoubtedly
complex, but not due to these circumstances.
The Court has not taken this argument
into consideration. 44
In the case Zmalinski v. Poland the Government
were of the view that the case had
been complex. According to the applicant modifications
of his claims had not complicated it.
The Court considers that, even though the
case was of some complexity, it cannot be said
that this in itself justified the entire length of
the proceedings. 45
We consider that a charged person is not
obliged to cooperate with the investigation. As
regards the plaintiff, the latter employs the procedural
rights when broadening or specifying the
claim. This is not out of the ordinary for court
practice. Correspondingly, referring to these factors,
as justifying circumstances, shall be employed
by a State only in extremely exceptional
circumstances, when this involves unpredictable
and substantial complications.
2. CONDUCT OF AN APPLICANT
“State is only responsible for the violations
which can be attributable to it. If the parties
during the proceedings or the accused in a
criminal case caused or contributed to protraction
of the proceedings, this time-period
shall not be taken into consideration”. 46
For instance, in the case Proszac v. Poland
the Court noted that the applicant con-
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