71
243. On its part, the State acknowledged that there has been a delay in the investigations
starting with the filing of the first criminal accusation, that is, as of March 27, 1992, since it
has not been able to determine the whereabouts of Mr. Rosendo Radilla-Pacheco. However,
it indicated that “[t]he case sub judice is complex from its origin […],” based mainly on the
time that has gone by since the facts occurred, reason for which it requested that the
Tribunal take this into consideration “[w]hen determining the reasonability of the term for its
resolution.”
244. Article 8(1) of the American Convention establishes as one of the elements of the due
process that the courts decide the cases submitted before them within a reasonable time
period. In this regard, the Court has considered it necessary to take into consideration
several elements in order to determine the reasonability of the term in which a process is
developed: a) complexity of the matter, b) procedural activity of the interested party, c)
behavior of the judicial authorities,245 and d) infringement generated to the juridical situation
of the person involved in the proceedings.246 However, the appropriateness of applying those
criteria to determine the reasonability of the term of a process depends of the specific
circumstances,247 since in cases such as the present the State’s duty to fully satisfy the
requirements of justice prevails over the guarantee of a reasonable term.248 In any case, it
corresponds to the State to prove the reasons why a process or set of processes have taken
a specific period of time that exceeds the limits of the reasonable term. If it does not prove
it, the Court has ample powers to make its own estimates in this sense.249
245. In the present case, the Court warns that the inquiry of the facts has certain
complexity, since it is a forced disappearance in execution for more than 35 years. However,
when the two first accusations were filed, the authorities did not carry out an exhaustive
investigation (supra para. 201). Even though the Special Prosecutors’ Office started, among
others, the investigation of the facts, the Court points out that, for this, a period of almost
10 years went by since the first complaint was filed in 1992. It is not possible to separate
this from the State’s omission itself. Likewise, during the subsequent investigations Mrs. Tita
Radilla Martínez has assumed an active position as “collaborator”, bringing before the
authorities the information she has obtained and driving the investigations. However, the
preliminary inquiry is still open more than seven years after the Special Prosecutors’ Office
started the investigations. In all, more than 17 years have gone by since the cabinet
authority was made formally aware of the forced disappearance of Mr. Rosendo RadillaPacheco, without the State having validly justified the reason for this delay. All the
aforementioned, seen jointly, has excessively surpassed the term that can be considered
reasonable for these effects. Therefore, the Court considers that the State failed to comply
with the requirements of Article 8(1) of the Convention.
245
Cf. Case of Genie Lacayo v. Nicaragua. Merits, Reparations, and Costs. Judgment of January 29, 1997.
Series C No. 30, para. 77; Case of Anzualdo Castro v. Peru, supra note 44, para. 156, and Case of Garibaldi v.
Brazil, supra note 32, para. 135.
246
Cf. Case of Valle Jaramillo et al. v. Colombia, supra note 40, para. 155; Case of Anzualdo Castro v. Peru,
supra note 44, para. 156, and Case of Garibaldi v. Brazil, supra note 32, para. 135.
247
Cf. Case of the Pueblo Bello Massacre v. Colombia, supra note 133, para. 171; Case of García Asto and
Ramírez Rojas. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 25, 2005. Series C
No. 137, para. 167, and Case of Anzualdo Castro v. Peru, supra note 44, para. 156.
248
Cf. Case of La Cantuta v. Peru, supra note 51, para. 149, and Case of Anzualdo Castro v. Peru, supra note
44, para. 156.
249
Cf. Case of Anzualdo Castro v. Peru, supra note 44, para. 156.
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