13
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 speak- legitimize 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 scrupulously pursue the investigation to open a proceeding, not trust
that there will always be a “second opportunity” to correct errors, gaps or flaws of the
initial investigation, and while this opportunity comes and the State takes advantage
of it –if it does occur and the State does in fact take advantage of it- legal security is
suspended and justice takes a vacation.
60.
We must also review the dies ad quem. We say that measurement of the
reasonable term extends until the definitive judgment. Very well, but only in
principle. When measuring that term, we must take into account the second
instance, when there is one, which may last several months, and sometimes several
years. Should we not, then opt for the unappealable judgment, which is the definitive
one that cannot be challenged through regular means of recourse? Of course, these
measurements must be applied in light of the specific case and taking into account
the aspects that European jurisprudence has outlined and that inter-American
jurisprudence has adopted, as I mentioned before: complexity of the matter, strategy
of the interested party, conduct of the court.
XV.
Preventive detention
61.
Every time the Inter-American Court examines matters such as those of the
Case of Tibi, the problem of preventive detention comes up. Certainly, it can arise in
connection with reasonable term, which in said conditions should be especially strict
and restricted, but also in connection with the very justification of this precautionary
deprivation of liberty. Beccaria deemed it to be the punishment before the judgment,
and expression that shows the strange nature of preventive detention and its
debatable justification. If it is only based on practical reasons (rooted in the inability
of justice to find a substitute that at the same time ensures development of the
proceeding and security of participants in it, and that enables re-floating of the
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