2
to safeguard the existence of the scale itself and to ensure that it is not unbalanced
beforehand.
5.
The claims of indigenous groups, communities and peoples and their
members are a good example —or perhaps we should say a terrible example— of
delayed justice. There is abundant enough evidence for it not to be an overstatement
to say that in these cases the delay has spanned centuries: first, the delay in
recognizing that “the original peoples could have a property right”, in spite of the law
imposed over them by a new domination which disregards the original claims;
afterwards, once the recognition is achieved —after historical endeavors— the delay
in “recognizing specifically that such right is to be exercised by certain claimants.”
The former is a general legal reparation readjusting the horizon of domestic law,
whereas the latter is an individual legal restitution specifically reconstituting the
heritage of communities and individuals.
6.
Issues of such kind arose in the instant case. They included the delays in the
processing the recognition of leaders —something which was excluded ratione
temporis, from the competence of the Court as it pointed out—, the recognition of
the community's juridical personality and its claim for lands. We are aware that it is
not possible —at least it has not been so thus far— to define precise time frames for
the proceedings to achieve their purpose, in other words, it is impossible to identify
the reasonable time stated in the American Convention with a strictly defined time
limit. The characteristics and contingencies of each case carry their own specific
weight, and they must be individually addressed in order to declare the existence or
inexistence of a violation. In spite of the relative span of the reasonable time, there
has been a general progress in fixing some conditions thereof, particularly in order to
rationalize and facilitate decision by the Court.
7.
One the one hand, it is meet to consider certain factors, as the InterAmerican Court has done following in the the wake of the European Court, to wit: the
complexity of the matter in dispute, the behavior of the authorities seized with the
case, and the behavior of the interested party. In my recent Separate Opinion in the
judgment rendered in the Case of López Alvarez v. Honduras, of February 1, 2006, I
suggested that the “actual infringement of the rights and duties of the individuals —
i.e., the their legal position— “ caused by the proceedings should be taken as a
fourth factor in calculating the reasonable time.” In explaining this budding notion, I
elaborated in the sense that “such factor could have little impact upon the legal
position held; if that is not the case, that is, if the impact gets higher to the point of
being great, then it will become necessary, in furtherance of justice and security that
are seriously jeopardized, to speed up the proceedings so that the situation of the
individuals, which has started to severely affect their life, is decided promptly, i.e
within a “reasonable time”. The infringement must be actual, and not merely
possible, likely, incidental or remote.”
8.
On the other hand, it is necessary to establish the acts commencing and
ending the proceedings, focusing on the protection of the fundamental rights at issue
rather than on the formal acts which, strictly speaking, start and end each stage in a
proceeding, in order to determine the dies a quo and the dies ad quem of the term
the “reasonableness” of which is to be tested under Article 8(1) of the American
Convention.
9.
In my opinion, all of these factors were brought to bear on the position of the
Court regarding the possible violations of Article 8 of the Convention, which in fact