Should “reasonable time” within the context of the fundamental human right to a fair hearing be interpreted to include the lapse between the moment of commission and the moment a person is charged?

Abstract

For decades, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was interpreted as applying solely from the point when an individual has been served with the charges brought against him before a court of criminal jurisdiction. This concept seems reasonable since, for the right to a fair trial to work, the individual needs to be forgoing, or about to forgo a trial. Along the years, however, claims regarding issues, based on Article 6, arising at the pre-trial stage were being accepted by the Court, but only if the merits of the case follow a limited set of criteria. This thesis will focus on pre-trial violations of Article 6 which stem, principally, from authorities’ misconduct. The interesting factor is that various legislations permit, in an indirect way, this to occur. The misconduct here, is the unreasonably long period of time taken by authorities to file a charge against an individual. The law enables, in an indirect way, such misconduct to occur by not providing prescriptive periods for certain offences, thus enabling the authorities to charge an individual after the lapse of an unreasonable period of time. This thesis asserts that without the application of a prescriptive period, an individual’s fate is left in the hands of the authorities, and this qualifies as a violation of the reasonable time requirement set in Article 6. If an unreasonable amount of time has passed since the commission of the offence, the individual is placed in a situation where he cannot exercise the right to a fair trial and this can hardly qualify as just. The modern day application of Article 6 to pre-trial situations is a crucial stepping stone in the field of human rights and constitutes the basis of this thesis. The reasonable time requirement is used to highlight the discrimination and unfairness caused by imprescriptible offences.