Lesión del derecho a un juicio sin dilaciones indebidas y proceso penal: disfunciones de la atenuación de la pena como compensación sustitutiva

Abstract

The Spanish ¨Constitution establishes the right to a public hearing without unjustified delays as a fundamental right, in consonance to the requirement of a «public hearing within a reasonable time» in ECHR art. 6.1. In view of the endemic slow pace of justice, the state economic compensation works as a symbolic redressing when the above mentioned right has been impaired. However, as the Council of Europe suggests, this economic compensation does not motivate the overcoming of the wrongs in the judicial system. In criminal proceedings the Spanish case law has consolidated in the last decade a form of compensation in sentencing, by means of a mitigation of the penalty. Nonetheless, both the temporal indeterminacy of the term «reasonable time» and the concrete sentencing rules of the Penal Code gives way to un fair results. The present work documents aspects of this issue, underlining contradictions in the grounding of mitigation; it also proposes a diversification of possible solutions.

Keywords

• mitigating factors in sentencing
• penal procedure
• right to trial without undue delay