5
17.
As I have stated on another occasion, I believe that another factor needs to be
added to these elements that help us assess the reasonableness of the time; one embodied
in law and in practice, based on the circumstances of the specific case: the impact that the
passage of time may have on the legitimate interests and rights of the individual, a point
that we have not explored up until now. Beside these general and reasonable references, I
consider that it will always be necessary to assess the issue casuistically. What is
reasonable in one case may not be in another. It would be difficult to establish a “typical
time” to which all proceedings are made to fit, as on Procrustes’ bed. Nevertheless, it is not
unusual that, even without having this “typical time,” which when exceeded allows the
actions of the authority to be censured – under the provisions of Articles 7 and 8 – we are
confronted with evidently excessive durations: weeks to decide whether a detention is
appropriate; years to bring a trial to conclusion.
D)
Material precautionary measures
18.
In the Judgment in the Case of Chaparro Álvarez and Lapo Íñiguez, the InterAmerican Court has also referred to material preventive measures in criminal cases, those
that affect property and, thus, restrict rights connected directly to such property;
particularly, the right to property. Many of the considerations, if not all, that I have
formulated with regard to personal preventive measures are also applicable to this type of
measure. These include, evidently, the rationality of the measures, based on elements that
justify them.
19.
It is necessary to be alert when faced with material precautionary measures that
constitute, basically, shortcuts to eliminating a right, without the existence of evidence
regarding the unlawful act committed, or proof of criminal responsibility, or a judgment
declaring both these elements: all factors that restrict or eliminate any right. The Judgment
in the case that gives rise to these comments points towards the excesses that may affect
property, a delicate issues whose importance increases to the extent that summary
instruments are used, unrelated to the declaration of unlawfulness and responsibility,
based on conjecture and associated with an inversion of the burden of proof.
20.
Thus, we return to the dilemma that has occupied many key decisions and
discussions in the criminal sphere: does the end justify the means? We have maintained
the inverse proposition, based on the principles of the criminal justice system of a
democratic society: the legitimacy of the means legitimizes the end. This has important
repercussions at all levels: for the precautionary measures that we are examining, but also
for the definition of crimes, the selection of the juridical consequences of a crime, the
organization of the proceedings, the admission and assessment of the evidence, the
execution of penalties and measures, etcetera.
Judge Sergio García Ramírez
President
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