9
analyzed, that may be under the pressure of contingencies of a diverse gender, from
natural to social, must be considered.
32.
The activity of the interested party may be determining in the prompt or
delayed attention of the conflict. I am referring to the activity in the process, and in
this sense, to a procedural activity, but one should also consider the activity –or better
yet, the behavior: active or omissive—in other fields, if it transcends the process or
influences it. The individual may, in order to defend his rights, use an ample number of
instruments and opportunities that the law puts at his disposal, under the form of
recourses or other figures that delay the moment of the decision on the merits of the
case. It is precise to be aware of the desire that the individual dispense of acts of
defense in favor of speed or pursuant to criteria of alleged rationality, in the judgment
of distant or committed observers. The court must prudently distinguish between the
actions and the omissions of the litigant focused on the defense –well or bad
informed—and those that only seek to delay the process.
33.
Regarding the behavior of the court –but it would be better to talk, generically,
about the behavior of the authorities, because not only the first operate on behalf of
the State--, it is necessary to separate the activity carried out with justifiable reflection
and caution, and that performed with excessive calm, exasperating slowness,
excessive rituals. What is the possible performance of a court (or, more extensively, of
an authority) applied seriously to the solution of the conflicts presented to it, and that
of one that distracts its energy while the defendants await a judgment that does not
come?
34.
In this aspect we must take into consideration the insufficiency of the courts,
the complexity of the old procedural regimen, the overwhelming workload, including
with regard to the courts that make a serious effort of productivity. It is necessary to
know this part of the reality, but none of these should damage the individual’s rights
and be used against him. The excess workload can not justify the non-observance of
the reasonable time, which is not a national equation between the amount of lawsuits
and the number of courts, but instead an individual reference for the specific case. All
those shortages translate into obstacles, from severe to impossible to overcome, for
the access to justice. Should the impossibility to access justice because the courts are
saturated with cases or because the judicial system has too many days off be
considered a violation of rights?
35.
Now, it seems possible that the complexity of the matter that motivates the
process, the behavior of the interested party –in this case, the defendant—and the acts
of the authority may not be enough to provide a convincing conclusion on the undue
delay, that violates or puts the judicial rights of the subject in grave danger. Thus the
appropriateness, in my opinion, to explore other elements that complement, do not
substitute, them for the determination of a fact –the violation of the reasonable time—
for which there are no quantitative comments universally applicable.
36.
I referred to, as a possible fourth element to be considered in estimating a
reasonable time, what I called “actual infringement caused by the process on the
individual’s rights and duties –that is, his judicial situation.” It is possible that the
latter could have little relevance in this situation; if this is not so, that is, if the
relevance increases, up to 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 upon in
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