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54.
The Inter-American Court, in consonance with the doctrine of the European Court,
has insisted on the aspects that must be taken into account to establish, in a specific
case, whether there was an unacceptable delay, in other words, whether there has been
disregard for the rule of the reasonable term: complexity of the matter, procedural
initiative of the interested party, and conduct of the court (or whoever conducted the
proceeding, as this point may be examined going beyond criminal prosecution: insofar as
there is a proceeding to decide on rights that have been denied, claimed or in doubt).
55.
The instant case has addressed the dies a quo and the dies ad quem of the
judgment for purposes of reasonable term. It is often said that the proceeding begins
when the charges are filed and it concludes when there is a definitive judgment, and that
the time between both moments, with their characteristic acts, is subject to
measurement under the concept of reasonable term. In principle, this specification may
provide guidance and even be sufficient. However, to arrive at conclusions that respond
to the concern that is at the basis of reasonable term, we must examine the
characteristics of each national prosecution.
The panorama is not homogeneous.
Therefore, it suggests different solutions, all of them seeking to address the need for the
time that an individual is subject to a criminal proceeding –which is a time of reduction,
compression, suspension of rights, despite arguments, based on technicalities, that it is
otherwise- to truly be the least possible time, precisely to avoid prevalence of
uncertainty and to avoid affecting, beyond what is strictly indispensable, the individual’s
rights.
56.
Saying that reasonable term begins when an individual is detained does not lead
to a satisfactory solution in all cases. Actually, it may be that before that moment there
has been an ongoing, protracted investigative, and even judicial, proceeding. During this
proceeding, the individual was already subjected to pressure and to oppression of his
rights. The lawfulness behind this conduct of the State does not in itself –so to speaklegitimize the abuse that may result from an extreme delay in deciding matters during
the initial stages of the procedure. That is why it is good that some legal systems have
established a certain term –which may be more or less broad- to exhaust an
investigation and to decide whether a case will be brought before a judge, when the
investigation has been conducted by the Public Prosecutor’s Office, or before the court
that hears the case, when the investigation was conducted by an examining judge.
57.
It is also possible for the proceeding to take place without the accused being
subject to preventive incarceration, whether because he receives the benefit of
conditional freedom, or because in his case the law does not allow precautionary
measures that restrict liberty. But even in these hypotheticals, it is possible for the
prosecution to last an unreasonable amount of time, even if, when it ends, the “alleged
innocent” who is accused has not suffered preventive incarceration.
58.
We must also pay attention to situations –as in the instant case- when the
proceeding enters into a sort of fixed-term “limbo”, as well as others in which the
procedure is suspended –whether in the investigative phase or during the trial- for an
indefinite time, which only concludes when the statute of limitations enters into effect,
but this can be interrupted by acts that seek only said result. It is not always a matter
of the old acquittal of action, generally reproved, but rather a sort of “new opportunity”
for investigation that hangs like a sword of Damocles over the defendant.
59.
Temporary or provisional stays, debatable in themselves, must be foreseen and
used with great restraint and, I would add, also with great reserve or reticence. This
parenthesis of legal non-definition serves justice poorly. The State must rigorously and
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