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a short time –“reasonable time”. The infringement must be real, not simply possible or
probable, casual or remote.
37.
I am aware that these concepts do not have the precision I would want, as
happens with the others provided for the analysis of the reasonability of the time
period: complexity of the matter, behavior of the interested party, behavior of the one
who judges. Certainly this is information subject to a reasoned examination;
references that must be assessed as a whole, within certain circumstances that are not
the same for all cases. The reasonability of the time period will be assumed from this
totality and the assessment of the Tribunal will be supported, in each case, by the
excess that may be incurred in and the violation committed.
38.
¿As of which act is the time period computed and therefore is the reasonability
of the time that goes by before deciding on a detention or a controversy analyzed? The
precision in this regard is indispensable when we are faced with different judicial
regimens, with different judicial and procedural structures, that are equally subject to
conventional dispositions and that must apply the criterion of reasonable time. In my
concept, what the international order of human rights seeks is that the infringement of
the people’s rights, by action or abstention of the State, is not unjustifiably prolonged
until it generates conditions of injustice, inequality, or judicial insecurity. The solution
to this problem requires precisions that must be provided by the jurisprudence and
that are usable in different procedural systems.
39.
The determination of the act –and therefore, the time to start the assessment
of the term—does not present greater problems when dealing with the period of
detention. Evidently, the period starts when the detention starts, based on the
individual’s capture; a legitimate capture is understood pursuant to the rules of arrests
in cases of crimes detected in the act or under the protection of the arrest warrant,
because in the case of an illegal or arbitrary capture the matter of reasonable time can
not even be brought up. In the matter sub judice, the moment of the arrest of the
victim establishes the dies a quo. The problems may appear, instead, when trying to
precise –independently if there is or not an imprisonment— the act as of which the
period of time for the conclusion of the process in the terms of Article 8(1) of the
Convention must be computed. Also here there was no problem is what refers to the
Case of López Álvarez: since he was arrested in a situation in flagrante, there was not
–or there was no evidence that there was—infringement or risk of prior infringement of
his rights, that could have been considered as previous interference of the State in
their realm.
40.
It has been said that the reasonable time for purposes of the process is
computed as of the subject’s arrest. This affirmation does not apply to the cases,
which are not few, in which the detention occurs after a lot of time dedicated to and
many procedures carried out in the investigation of crimes and against the subject that
will later be detained. It has also been affirmed that this term starts when the judge
takes charge of the investigation. This rule, that could be enough in systems that
entrust the preliminary proceedings to the judge, is not adequate for those in which
the investigation is in the hands of the Office of the Public Prosecutor and only reaches
the court a long time after that. On the other hand, it is stated that the term can be
computed from the act of formal accusation by the Office of the Public Prosecutor. It is
obvious that this has a different sense and scope in the different procedural systems:
in one, the accusation (or an act to which it is possible to assign, due to its material
characteristics, that nature and content) is presented almost immediately; in another,
it can be presented when the State’s persecutory activity has advanced. Likewise, it
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