8
tribunal “in the substantiation of any accusation of a criminal nature made against
him” or for the determination of his rights and obligations of another nature (Article
8(1), that refers to the complete process, up to the issuing of a judgment on the
merits of the case, under the epigraph “Right to a Fair Trial”); and third, “everyone has
the right to simple and prompt recourse” for protection against acts that violate his
fundamental rights (Article 25(1), regarding “Judicial Protection”).
28.
Despite the diversity of the situations contemplated in each case, diversity that
I am not going to discuss at this time, the three stipulations of the Convention obey to
a same project for the defense of the individual’s rights: opportunity for protection,
which may be useless, inefficient, or deceptive if it is not offered on time, in the
understanding that “arriving on time” means operating with maximum efficiency in the
protection and minimum infringement of the individual’s rights, promptness that does
not mean riding roughshod, rashness, or thoughtlessness. These stipulations take into
consideration the concerns that preside the aphorism “delayed justice is denied
justice.”
29.
The facts examined in the Judgment I am now commenting involves violations
to the reasonable time in the detention (that concern Article 7(5)) and in the
development of the process (which refer to Article 8(1)). In what refers to this last
matter, the Court has once again brought forward the criterion it claimed some time
back, taken from the jurisprudence of the European Court of Human Rights, for the
examination of the reasonability of the time period –complexity of the matter,
procedural activity of the interested party, and behavior of the judicial authorities--,
without forgetting that it is not possible to ignore the specifics of each case nor
determine strict “calendars” for the universal solution of all cases. Would it be possible
and recommendable to explore a fourth element, as stated infra, as of the actual
infringement caused by the process on the individual’s rights and duties –that is, his
judicial situation. The Tribunal also studied the dies a quo of the reasonable time in
function of the act as of which the time should be computed, which is not exactly a
term, because this ordinarily supposes the determination of a specific time and/ or of
periods –with a starting and end point—for the realization of a specific procedure or
the variation of a situation.
30.
When analyzing the complexity of the matter, the Court that verified the
compatibility between the State’s behavior and the stipulations of the Convention –that
is, the body that practices the “control of conventionality”— must explore the
circumstances de jure and de facto of the case. It is possible that the judicial analysis
may be relatively simple, once the facts regarding which the lawsuit has occurred have
been established, but these may be extraordinarily complex and be subject to tests
that are difficult, necessarily prolonged, or of complicated, costly, risky or late
recollection. The contrary may also occur: relative clarity and simpleness of the facts,
in contrast with severe problems in the judicial appreciation or in their classification:
different opinions, changes in the case-law, inexact legislation, reasons worthy of
consideration in different or dissenting senses.
31.
Likewise, it will be precise to consider the number of relationships that concur
in the lawsuit: sometimes it is not only one, but multiple relationships that appear
within the controversy and that must be explored, understood. Similarly, it is precise
to take into account the number of participants in the material relationships and in the
procedures, with their respective positions, their rights, and their interests taken to
trial, as well as their reasons, and expectations. And the conditions in which the case is
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