obligations caused by the proceedings – that is, his judicial situation.’ It is possible that the
latter could have little relevance on this situation; if this is not so, that is, if the relevance
increases, until it is intense, it would be necessary, for the sake of justice and security, both
seriously threatened, that the process be more diligent so that the subject’s situation, which
has begun to seriously affect his life, may be decided in a short time – ‘reasonable time.’
The impairment must be real, not simply possible or probable, eventual or remote.”
10.
I added: “I am aware that these concepts do not have the precision I would want, as
in the case of others provided for the analysis of the reasonableness of the time period:
complexity of the matter, behavior of the interested party, behavior of the judge. Certainly
this is information subject to a reasoned examination; references that must be assessed as
a whole, within certain circumstances that are not the same in all cases. The reasonableness
of the time period will be inferred from this totality and the assessment of the Court will be
supported, in each case, by the excess incurred in and the violation committed.”
11.
I again referred to this issue in my opinions relating to the judgments in the
Sawhoyamaxa (Paraguay) case, of March 29, and the Ituango Massacres (Colombia) case,
of July 1, 2006. Finally, in the judgment in the case of Valle Jaramillo et al., the InterAmerican Court has expanded its consideration of reasonable time and incorporated the
elements to asses it that I suggested in the personal opinions mentioned above. This
acceptance is based on the conviction that, in addition to the factors established by
European case law and incorporated by inter-American case law – or together with them – it
is essential to assess the greater or lesser harm caused by the time - also greater or lesser
– that elapses in the processing and deciding of a dispute or in the definition of an
obligation or a right.
12.
At times, when weighing the harm, the time elapsed is irrelevant; in others, it is very
detrimental to the victim. Consequently, the other elements used to assess reasonableness
– complexity of the matter and conduct of authorities and private individuals – should also
be examined in light of the prejudice that is being caused to the victim. Time does not
elapse equally for everyone, and the elements usually taken into consideration to establish
the reasonableness of time do not affect everyone in the same way. I realize that it is
possible to identify weaknesses in this argument, but I also maintain that the inclusion of
this new item of information helps improve the definition of reasonable time and give
greater precision to the concept.
13.
I must emphasize that it is not my purpose to replace the elements of traditional
legal doctrine and concentrate all the consequences of measuring reasonable time on the
harm caused; on no account. Nor have I suggested that a lack of appreciable harm
legitimates the passage of time, whatsoever the length, and absolves the State of
responsibility as regards due process; on no account. I am merely suggesting the
pertinence of looking at the traditional elements of measurement also – and only, also –
from the optic or the perspective of the actual harm that the passage of time causes to the
victim. This constitutes an additional factor in the assessment, which should be combined
with the other factors considered to measure the reasonableness of the elapsed time.
14.
This idea has now been introduced into the Inter-American Court’s case law as of this
judgment handed down in the case of Valle Jaramillo et al. Indeed, it enhances the
examination of the time period and enhances the decision adopted by the Court in this
regard, when it states: “The Court has established that three elements must be taken into
account in order to determine whether the time is reasonable: (a) the complexity of the
matter; (b) the procedural activity of the interested party, and (c) the conduct of the
judicial authorities. In addition, the Court finds it pertinent to clarify that, in this analysis of