The right to a fair hearing within a reasonable time : a right of little consequence?

Abstract

The author aims to give legal and academic perspective to the theory and practice surrounding the right to a fair hearing within a reasonable time. This field of rights has been somewhat neglected academically, a fact which jars with the sheer volume of case law which buds from this single, simple Convention right and which bears testimony to widespread concern with delays in judicial proceedings which transcends the boundaries of states or legal systems. The concept of subsidiarity lies at the very heart of an effective implementation of the rights enshrined in the Convention, and this investigation drives at understanding the extent to which Convention principles have been drawn on domestically in this field of rights. This is achieved through a study comprising four stages. Firstly, the principles emanating from Strasbourg length-of-proceedings jurisprudence are identified. Secondly domestic case law is studied in the light of these principles in order to identify similarities and divergences between the two bodies of jurisprudence. Scrutiny of the domestic legal avenues providing redress for delay in judicial proceedings follows, in order to assess the effectiveness of such remedies in Convention terms. Finally, a number of areas of concern, identified through the progressive build-up and application of Convention principles to our legal system, are identified. While it is academically interesting to observe the influence which the civilian tradition has had locally on remedies of a constitutional nature, as well, conversely, the progressive cognizance which the ordinary civil courts are taking of human rights issues, this endeavour also seeks to demonstrate the dangers which may result from an uneasy confluence of legal principles resulting in a legal system which ostensibly offers multiple remedies but in practice is afflicted by a dearth of effective avenues for redress to cater for certain losses.