11
has been stated that the multimentioned term starts when the commencement of the
process is issued (with the different names given to the decision that orders the
commencement of the process, once certain persecutory suppositions have been
complied with). It is clear that since there is no unanimity of regimens regarding this
matter, a reference that does not have uniform and invariable characteristics may not
be subject to the reasonable time.
41.
The Inter-American Court has previously stated that the term starts, in
criminal matters, on the date on which the individual was arrested (cfr. Case of Suárez
Rosero. Judgment of November 2, 1997. Series C, No. 35, para. 70; Case of Tibi.
Judgment of September 7, 2004. Series C, No. 114, para. 168, and Case of Acosta
Calderón. Judgment of June 24, 2005, Series C, No. 129, para. 104), and that when
this measure is not applicable, but a criminal process is ongoing, the term must be
computed as of the time in which the judicial authority takes up the case (Case of Tibi,
cit., para. 168).
42.
In the Judgment to which I add this Opinion, the Court advances in the
consideration of the matter. The advance implies, in my judgment, an acknowledgment
that the previous solutions should have been developed attending to the problems that
may arise in this field and taking into account the different procedural systems. Thus,
the Tribunal considered that “the reasonability of the time period referred to in Article
8(1) of the Convention must be analyzed with regard to the total duration of the
criminal process developed against a certain defendant, up to the issuing of a definitive
judgment. In criminal matters this period of time starts when the first procedural act
against a specific person as the probable responsible of a certain crime is presented”
(para. 129), which is relevant or implies certain intensity of the infringement of the
subject’s rights, either because it actively limits or compromises them (as in the case
of the defendant), or because it ignores or puts them off in an unacceptable manner
(as occurs in the case of the offended party). Therefore, the assessment of those
extremes must be made in the circumstances of the specific case, with adequate
analysis and reasoning.
43.
Thus, we have here a substantial expansion on the start of the time to be
considered when appreciating the reasonability of the term: not the arrest, that does
not even apply to all cases; nor the accusation of the Office of the Public Prosecutor or
the judicial writ of indictment, which may occur with the persecution well in advance;
or with the formal opening of the process (full trial), that also comes when acts that
affect the scope of the individual rights have been carried out, sometimes for a long
time. That is, what must be taken into consideration is that act within the persecutory
actions of the State –that has different manifestations and basis prior to arriving at, if
it comes, the formal process—already directed against a specific subject, pursuant to
the stipulations of the Domestic law, that therefore means, infringement of his rights:
infringement that must not be excessively prolonged in the time period that leads to
the corresponding decision: the judgment in firm –as also indicated in this case—that
puts an end to the process and irrevocably solves the defendant’s situation. The latter,
however, does not disturb the operation of extraordinary recourses in benefit of the
defendant.
44.
As stated, the act of reference to state the dies a quo of the reasonable period
of time –or, better said, of the reasonable time—is not necessarily found in a criminal
process that has not started when the infringement occurs. Thus, that the Court chose
to speak more extensively of procedure, without going into the distinction between
process and procedure, which is an interesting matter from a technical perspective, but
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