4
in Article 9 of the American Convention, but rather an additional benefit, and a prompt and
opportune guarantee.
13.
By stating this, I am not disagreeing, even remotely, with the judgment I have
signed. I am not validating the delivery of habeas corpus to political and administrative
authorities (mayors, for example), rather, I am affirming that the violation or error
committed by the captor can be corrected without delay by that authority, not by means of
habeas corpus and in substitution of the judicial authority or as an instance that precedes
the latter, but in order to provide prompt justice, which eliminates the violation and
restores liberty. Moreover, I am thinking of the situation that could arise when the
administrative authority is able to act promptly, owing to his proximity to the person
captured and to the captor, and the judicial authority is at a certain distance that must be
covered – promptly, evidently – in order to request this liberty.
c)
Formality
14.
In the instant case, the Court also examined the characteristics of the act of judicial
control (referring to the precedent established in other cases); that is, the presence, action
and diligence of the judge who controls the form and duration of the detention. Obviously,
the purpose of the guarantees contained in the Convention and in the laws of a democratic
society that protect rights and establish guarantees, is not merely an appearance of
control, which could derive in the mere presence of a judicial authority at a determined act,
more or less distant and even covert. What is needed is an effective presence – conscious,
explanatory, investigative, helpful – of the subject before the judge and a real awareness
on the part of the judge, as a requirement for genuine control based on a grounded and
reasoned decision.
d)
Diligence
15.
Regarding the diligence in the actions of the authorities required by various
provisions under different hypotheses (the decision on detention, pursuant to Article 7 of
the American Convention; the development and conclusion of the trial, according to Article
8), the expressions used by the applicable provisions, by case law and legal doctrine, by
the vox populi and by common sense, and the experience deposited in the discourse of the
defendants, all point towards the prompt and expedient action of the authority called on to
decide (as rapidly as that authority would wish a decision to be made if he himself was
subject to trial, for one moment taking the place of the accused on the defendant’s bench)
on the reasonable promptness of the decision, the removal of obstacles, and the
elimination of delays that postpone the control of the lawfulness or legitimacy of the act,
the settlement of a dispute, or the adoption of an urgent measure (particularly for the
person who is subject to the action of justice: a temporary resident in the labyrinths of any
stage of the proceedings.
16.
There can be – and there are – general criteria to assess reasonable time, related to
the different hypotheses posed, and accepted in the intention of different expressions. The
Court, which deals with developments of European case law under this point, has referred
to the complexity of the issues, the conduct of the authorities (judicial and other, who
intervene in the proceedings and, through their procedural conduct, influence the latter’s
development, its “times and movements”), the conduct of the accused (and even more of
his legal counsel, who guides the defense “strategy and tactics”). The latter, we must
emphasize, does not conclude with the transfer to the individual of “responsibility” for the
duration of the process. The Court has never suggested that there has been or there exists
such a transfer of responsibility and assignment of prejudice.
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