7
30.
Under some trial systems, investigations are beyond the scope of the judicial
authority and may be extremely prolonged while the investigator satisfies the legal
requirements for filing the case before the jurisdictional body. In others, the
investigation and trial have different stages, each of which has its own implications
and characteristics; all of them carried out by different authorities. At other times, it
may be the judge himself who conducts the investigation, although he must forward
the results to the Attorney General’s Office (Ministerio Público) to a judge with the
appropriate competence for prosecution and, when applicable, sentencing. All of this
influences the time that an individual is retained by the authority that hears – lato
sensu – his case and, thus, the time within which the rights and obligations are
defined, which is what really interests and affects the individual, above and beyond
the technical aspects of the proceedings.
31.
In my said opinion in López Alvarez v. Honduras, I referred to this problem in
the terms that I now reproduce and confirm: “In this respect, the definition (namely,
the beginning and end of the time period) is essential when we are confronted by
different juridical systems with distinct procedural and judicial structures that are
also subject to Convention provisions and must apply the criteria of reasonable
time.”
32.
“In my opinion, the objective of the international human rights system is to
ensure that the harm of individual rights, owing to the action or omission of the
State, should not be prolonged without justification until it gives rise to a situation of
legal uncertainty, inequity or injustice. The solution of this problem calls for a
clarification through case law that can be used with different procedural systems”
(para. 38).
33.
I consider that the reasonable time for satisfying the right to justice cannot
be conditioned by the mechanisms inherent in each procedural system, so that each
one arrives at different and possibly misleading conclusions on the effective
observance of the same right. Inequity lurks behind such mechanisms. The point is
that the State authorities that (according to the procedural system adopted by the
State) participate in the actions leading to the solution of a dispute should respect an
acceptable rhythm – diligent, reasonable, adequate and pertinent, without
disregarding the import of the circumstances.
34.
Whether the process is divided up among diverse authorities or concentrated
in a single body, whether, during the course of the proceedings, partial decisions
(such as commitment to trial, when charges have been filed) are issued immediately
after the accused has been investigated or when the victim files a complaint, or a
long time after either of these moments, none of this should alter, deviate or conceal
the requirement that a case should be resolved within a reasonable time from the
occurrence of the facts that gave rise to the proceedings.
35.
The first official act that affects the rights of the individual is the point of
reference to calculate the reasonable time, measure its duration, compare it with the
characteristics of the issue and the reasonable diligence of the State, and assess
compliance or non-compliance with the judicial guarantee of reasonable time. The
case law of the Inter-American Court has ruled on this recently. Hence, it is sufficient
that the individual is affected in this way for attention to be paid to assessing the
reasonable time, even though, technically, the harm does not occur within the
criminal “proceedings,” but within a criminal “procedure.” For the effects of the
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