Original scientific paper
Duration of Criminal Process and the Right to a Trial within a Reasonable Time
Davor Krapac
; Croatian Academy of Sciences and Arts, Zagreb; Constitutional Court of the Republic of Croatia, Zagreb; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
The starting assumption of this paper is that an efficient and fair criminal trial is that whose duration was proportional to the circumstances of the case and in which the court correctly decided about the innocence or guilt of the defendant, and in the latter case pronounced a lawful criminal sanction. In the first part of the paper the author investigates the duration of criminal trials in the Republic of Croatia from the data on unresolved cases appearing before municipal and county courts according to the ratio of the case turnover and the disposition time from the moment of filing criminal report to the verdict. Statistics show that the general situation regarding the average length of criminal procedures is better than the public assessment in the Republic of Croatia: the median of the average duration of criminal procedures in 2009 and 2010 was 6-12 months, while the clearance rate has a constant rate of increase by 2-5 %. In addition, the clearance rate in Croatia is higher than in many other member states of the Council of Europe; it equals 106 % per annum, which is much better than in 21 countries which have the rate lower than 100 %. This suggests that the public perception, often abused by the media, that criminal judges are slow and inefficient in carrying out their duties, is incorrect. The second part of the paper deals with procedural forms intended for expedited criminal procedures (provisions of the CPA 2008 on procedural deadlines and consequences of missing them) and special procedural forms aimed at the prevention and sanctioning of abuse of procedural actions by the parties. The author assumes the difference between “active” and “passive” rights of defence and warns that it is possible to prescribe sanctions only for the former, i.e. the so-called procedural sabotages, which must be legally regulated and, in a concrete case, determined by the court in both objective and subjective terms. Further, the author presents the general benchmarks for calculating the reasonable duration of trial according to the practice of the European Court of Human Rights, with a particular regard to the judgments of this court in cases against the Republic of Croatia, resulting in positive obligations for the state to secure the right to a trial within a reasonable time no matter whether the duration of trial was found "unreasonable" (like in the cases of Camasso and Jeans), or it was another substantive right from the European Convention of Human Rights that was violated (which implies that the justice system was disorganised or inefficient, like in the cases Skendžić and Krznarić, Jularić, D.J., V.D., Đurđevići, Beganović, Getoš Magdić, Šuput, Dervishi). Finally, the author presents the characteristics of the Croatian request for the protection of the right to a trial within a reasonable time as a specific acceleratory and satisfactional legal remedy, and compares it with the German Verzögerungsrüge, introduced in 2011, and concludes that the domestic legal remedy in Croatia is still underregulated what requires a comprehensive legislative intervention.
Keywords
criminal procedure; speedy trial; principle of fairness in criminal procedure
Hrčak ID:
103806
URI
Publication date:
27.2.2013.
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