A person who is accused of a crime must (a) have his or her case heard (b) without undue delay (c) at all stages, whether in first instance, review or appeal. This guarantee serves to avoid keeping persons for too long in a state of uncertainty about their fate, to ensure the deprivation of liberty does not last longer than is necessary, serve the interests of justice and that evidence is not lost with passage of time. When assessing delay or reasonableness of time, each case is dealt with on its own merits taking into account mainly (a) the conduct of the accused person, (b) the manner in which the administrative authorities have dealt with the case and (c) the complexity of the matter. Violations occur where state authorities take too long to bring the accused person to trial without the fault of the suspect, and especially where a case is fairly simple to investigate.
Comprehensive:
According to article 14(3)(c) of the ICCPR ‘in the determination of any criminal charge against him, everyone shall be entitled … to be tried without undue delay.’[1] (See *Trial within reasonable time*)
What amounts to trial 'without undue delay' is dependent on the circumstances of each case.[2] As to the manner in which judicial and administrative authorities dealt with the matter and the lapse of time from charge until a first instance trial, review or appeal is weighed against the reasons proffered for the delay such as the conduct of the accused and/or the complexity of the matter.[3]
The elements of promptness of trial, the nature of proceedings covered by the provision, and factors to be considered when determining whether there is a case of undue delay are as follows:[4] to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.... All stages, whether in first instance or on appeal must take place “without undue delay”.
The HRC commented that ‘In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible’.[5] Where children are concerned, public authorities must ensure that they are ‘brought as speedily as possible for adjudication’[6] or that ‘the matter is determined as speedily as possible’.[7]
Another rationale for promptness is the risk of loss of evidence to the detriment of the accused person should trial proceedings retard. See *adequate time and facilities to prepare the defence*
Time begins to run once a charge is officially laid,[8] through investigative stages (pre-trial), then into first instance proceedings, which should result in a judgment, and or a sentence until review and appeal proceedings are completed.[9]
The onus to prove delay lies with the accused. The burden then shifts to the state to justify the delay by showing that the delay was either due to the conduct of the accused person, or the complexity of the case.[10]
State authorities must expedite the process by avoiding stagnation of proceedings, for instance due to endless investigations in fairly simple cases. In Asto and Rojas v Peru, review proceedings took eight years to be concluded. The IACtHR held that despite the complexity of the matter, the delay was as a ‘result of systematically delayed proceedings on the part of the State authorities’.[11]
Factors generally considered regarding the complexity of the matter include the nature and number of the charges, the seriousness of the offence, the nature of investigation required and number of witnesses.[12] In Sextus v Trinidad and Tobago,a delay of 22 months between charge and trial in a homicide case where the factual evidence was straightforward and needed minimal police investigation violated the right to trial without undue delay.[13]
The conduct of the accused person should not deliberately or negligently result in the protraction of proceedings to his detriment. Such conduct may include unavailability for trial, repetitive and unnecessary postponements of the trial, or undue delay in choosing counsel. Where the protraction of proceedings is as a result of the accused person’s fault, the undue delay standard will not be violated. Reference?
[1] See also ACHPR art 7(1)(d), ACHR art 8(1), ECHR art 6(1).
[11] Asto and Rojas v Peru, application (IACtHR) para 168. Lumanog and Santos v Philippines communication 1466/2006 (HRC 2008). In this case delay of eight years in the determination of an appeal against conviction of murder and a death sentence was deemed by the HRC to be unreasonable in the circumstances.
[12] Mitap and Müftüoôlu v Turkey application 15530/89, 15531/89 (ECtHR 1996]. In a case involving 723 accused and about 607 charges, the ECtHR found first instance proceedings that lasted about eight and a half years to have been concluded within reasonable time.
[13] Sextus v Trinidad and Tobago communication 818/1998 (HRC 2001) para 7.2.
A person who is accused of a crime must (a) have his or her case heard (b) without undue delay (c) at all stages, whether in first instance, review or appeal. This guarantee serves to avoid keeping persons for too long in a state of uncertainty about their fate, to ensure the deprivation of liberty does not last longer than is necessary, serve the interests of justice and that evidence is not lost with passage of time. When assessing delay or reasonableness of time, each case is dealt with on its own merits taking into account mainly (a) the conduct of the accused person, (b) the manner in which the administrative authorities have dealt with the case and (c) the complexity of the matter. Violations occur where state authorities take too long to bring the accused person to trial without the fault of the suspect, and especially where a case is fairly simple to investigate.
Comprehensive:
According to article 14(3)(c) of the ICCPR ‘in the determination of any criminal charge against him, everyone shall be entitled … to be tried without undue delay.’ [1] (See *Trial within reasonable time*)
What amounts to trial 'without undue delay' is dependent on the circumstances of each case.[2] As to the manner in which judicial and administrative authorities dealt with the matter and the lapse of time from charge until a first instance trial, review or appeal is weighed against the reasons proffered for the delay such as the conduct of the accused and/or the complexity of the matter.[3]
The elements of promptness of trial, the nature of proceedings covered by the provision, and factors to be considered when determining whether there is a case of undue delay are as follows:[4]
to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.... All stages, whether in first instance or on appeal must take place “without undue delay”.
The HRC commented that ‘In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible’.[5] Where children are concerned, public authorities must ensure that they are ‘brought as speedily as possible for adjudication’[6] or that ‘the matter is determined as speedily as possible’.[7]
Another rationale for promptness is the risk of loss of evidence to the detriment of the accused person should trial proceedings retard. See *adequate time and facilities to prepare the defence*
Time begins to run once a charge is officially laid,[8] through investigative stages (pre-trial), then into first instance proceedings, which should result in a judgment, and or a sentence until review and appeal proceedings are completed.[9]
The onus to prove delay lies with the accused. The burden then shifts to the state to justify the delay by showing that the delay was either due to the conduct of the accused person, or the complexity of the case.[10]
State authorities must expedite the process by avoiding stagnation of proceedings, for instance due to endless investigations in fairly simple cases. In Asto and Rojas v Peru, review proceedings took eight years to be concluded. The IACtHR held that despite the complexity of the matter, the delay was as a ‘result of systematically delayed proceedings on the part of the State authorities’.[11]
Factors generally considered regarding the complexity of the matter include the nature and number of the charges, the seriousness of the offence, the nature of investigation required and number of witnesses.[12] In Sextus v Trinidad and Tobago,a delay of 22 months between charge and trial in a homicide case where the factual evidence was straightforward and needed minimal police investigation violated the right to trial without undue delay.[13]
The conduct of the accused person should not deliberately or negligently result in the protraction of proceedings to his detriment. Such conduct may include unavailability for trial, repetitive and unnecessary postponements of the trial, or undue delay in choosing counsel. Where the protraction of proceedings is as a result of the accused person’s fault, the undue delay standard will not be violated. Reference?
[1] See also ACHPR art 7(1)(d), ACHR art 8(1), ECHR art 6(1).
[2] HRC General Comment 32 para 35.
[3] Barbera and Ors v Venezuela Series C no 182 (IACHR 2008) paras 173-181
[4] HRC General Comment 32 para 35. See also Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa (2003) art 5(c).
[5] HRC General Comment 32 para 35.
[6] ICCPR art 2(b).
[7] CRC art 40(2)(b)(iii); ACRWC art 17(2)(c)(iv).
[8] Coëme and others v Beligium application 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (ECtHR 2000) para 133.
[9] Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa art 5(b).
[10] Barbera and Ors v Venezuela para 172.
[11] Asto and Rojas v Peru, application (IACtHR) para 168. Lumanog and Santos v Philippines communication 1466/2006 (HRC 2008). In this case delay of eight years in the determination of an appeal against conviction of murder and a death sentence was deemed by the HRC to be unreasonable in the circumstances.
[12] Mitap and Müftüoôlu v Turkey application 15530/89, 15531/89 (ECtHR 1996]. In a case involving 723 accused and about 607 charges, the ECtHR found first instance proceedings that lasted about eight and a half years to have been concluded within reasonable time.
[13] Sextus v Trinidad and Tobago communication 818/1998 (HRC 2001) para 7.2.