The mitigation of undue delay

The extenuating circumstance of extraordinary and undue delay.

It is the doctrine of the Supreme Court that there are two aspects that must be taken into consideration when interpreting the extenuating circumstance introduced by Organic Law 5/2010 of 22 June in article 21.6 of the Penal Code, which states that it is an extenuating circumstance:

Extraordinary and undue delay in the proceedings, provided that it is not attributable to the defendant himself and is not commensurate with the complexity of the case

On the one hand, the existence of a "reasonable time", as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which recognizes every person's "right to be heard within a reasonable time", and on the other hand, the existence of "undue delay", which is the concept offered by Article 24.2 of the Spanish Constitution.

The High Court understands that these are concepts which, although similar and converging, are in fact different in their interpretation. Undue delay" is a kind of proscription of delays in processing, which must be assessed by the detailed analysis of the case and the dead time periods in the sequence of such procedural acts. On the contrary, the "reasonable time" is a much broader concept, which means the right of every defendant to have his case heard within a reasonable time, which must have as reference indexes the complexity of the case and the procedural vicissitudes of others of the same nature, together with the means available in the Administration of Justice (Supreme Court Decisions of 21 February and 21 July 2011).

The right to a speedy trial is defined as the requirement that the duration of the proceedings does not exceed what is prudent, provided that there are no reasons to justify it or that the delays themselves are not caused by real "delays" in the proceedings or are due to the accused himself, in cases of default, for example, or to his procedural conduct, leading to suspensions, impertinent appeals, etc.

Undue delay' therefore requires a specific assessment, in each case, of whether there has been a genuine delay attributable to the court, and whether the delay is unjustified, causing the proceedings to take longer than could be expected or tolerated.

The requirements, therefore, for the application of the mitigation of undue delay are

1. the delay is undue (the complexity of the case does not justify the time spent on processing it);

2) that it is extraordinary (outside the ordinary margins of duration of the same type of litigation); and

3. that is not attributable to the defendant himself.

For the assessment of the mitigation of undue delay as highly qualified, the period that is calculated for the purpose of determining the extraordinary duration of the delay must be accompanied by the assessment of "especially extraordinary", since if to assess the generic or ordinary mitigation requires an undue and extraordinary delay in its temporal extension, for the highly qualified one a time greater than the extraordinary one will always be required.

Our Jurisprudence has appreciated the attenuation with the character of very qualified in cases in which there had been paralyses of notable consideration, for space of several years. Thus, the character of highly qualified extenuating circumstances has been appreciated, cases of the course of nine years of criminal proceedings; also, criminal proceedings for acts that occurred in 1993 and were judged in 2001 have been appreciated as highly qualified; and other cases that have taken more than 15 years.

When there is an extenuating circumstance, the penalty is applied in the lower half of that set by law for the offence. When there are two or more mitigating circumstances, or one or more highly qualified ones, and there is no aggravating circumstance, the penalty will be one or two degrees lower than the penalty established by law, taking into account the number and entity of such mitigating circumstances.

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