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Circumstances that allow for a reduction of the sentence in criminal proceedings are provided for in Article 21 of the Criminal Code. These mitigating circumstances play a very important role, as in some situations they can significantly reduce the length of the sentence. Therefore, their impact can be decisive in the amount of time a convicted person could spend in prison.
Among these mitigating factors, one of the most relevant is the one that applies when the judicial procedure is excessively and unjustifiably prolonged, commonly known as the mitigating factor for undue delay.
This provision had no positive regulation, but was developed by the different courts in their judgments. In 2010, the legislator finally decided to include this provision explicitly in the Criminal Code along the same lines as previous case law. At present, it is regulated in Article 21.6ªCP which establishes the following:
‘Extenuating circumstances are: [...] 6ª Extraordinary and undue delay in the processing of the proceedings, provided that it is not attributable to the accused and that it is not proportionate to the complexity of the case.’
The rationale for this mitigating factor lies in the emotional and psychological harm suffered by anyone subjected to a lengthy criminal trial. Waiting for years for the resolution of a trial generates considerable uncertainty and stress for the accused, especially when faced with the doubt as to whether he or she will be convicted or acquitted.
In addition to the emotional burden, it is important to consider that during this time the person may be under precautionary measures such as pre-trial detention, restrictions on freedom or limitations on their assets.
The Criminal Code establishes several requirements for a defendant to benefit from this mitigating circumstance, which are developed in Article 21.6:
1. Extraordinary and unjustified delay in the proceedings.
Not every delay in the case allows this reduction to be applied. In order for it to be applicable, the delay must be significant and abnormal, beyond what is usual in any judicial process. The delay must be of such a magnitude that it is unjustified for the defendant.
2.The delay must occur during the judicial proceedings
Generally, the time elapsed from the beginning of the proceedings until the oral trial is held is considered. Although in some exceptional cases, the Supreme Court has extended this calculation to the appeals stage or even to the issuing of the judgment.
3.Delay should not be the responsibility of the defendant
If the delay in the proceedings is due to dilatory manoeuvres by the defendant himself, he cannot benefit from the mitigating circumstance. The purpose of this measure is to compensate the defendant for the unjustified time spent waiting, but if this has been caused by the defendant's own actions (such as fleeing from justice or failing to cooperate), the mitigation does not apply.
4. There must be a disproportion between the delay and the complexity of the case.
The delay must be disproportionate to the complexity of the case. A simple case with a single accused is not the same as a complex case with multiple defendants and expert evidence. For example, a delay of three years may be considered normal in a very complicated case, but excessive in a simple case.
There is no specific time limit to determine when undue delay has occurred, as the Supreme Court has defined the concept of ‘undue and extraordinary delay’ as indeterminate. Its application requires an examination of the procedural proceedings in each specific case to verify whether there has indeed been an unjustified delay in the proceedings, provided that this is not attributable to the defendant.
Each case must be analysed individually, taking into account the complexity of the proceedings and the specific circumstances. In simple proceedings, a relatively short delay might be sufficient to apply this mitigating factor, while in more complex cases, a longer delay might not be considered excessive. In order to apply this mitigating factor, the case law requires that the party invoking the mitigating factor must detail the specific periods of delay and show that such delays are unjustified.
Where the mitigating circumstance of undue delay is applicable, the penalty for the offence according to Article 66 of the Criminal Code will be imposed. In cases in which only this mitigating circumstance is present, without other aggravating circumstances, the penalty will be applied in the lower half of the sentence. Furthermore, the Supreme Court foresees that, if the delays are of ‘notable consideration’, the mitigating circumstance can be qualified as very qualified, which allows the penalty to be reduced by one or two degrees, in accordance with the rule of Article 66.1.2 of the Criminal Code.
Judges must therefore analyse each situation in detail to determine whether the delays in the proceedings are serious enough to reduce the defendant's sentence. A recent example of the application of this mitigating factor can be found in Supreme Court Judgement 928/2023 of 14 December 2023, which includes these criteria.
Attenuating circumstance of undue delay and other rights:
The Judgment of the Criminal Chamber of the Supreme Court, handed down on 18 July 2024, in appeal 2295/2022, offers a crucial interpretation on the consideration of the mitigating circumstance of undue delay in cases of fraud. In this case, the appellants argued that the delays, which extended over a period of ten years, constituted sufficient grounds for applying this mitigating factor, arguing that the time that had elapsed had prejudiced their right to an effective defence.
The Court of First Instance, however, took a critical view of this allegation. While acknowledging the delays, the nature of the case, characterised by its complexity and the existence of numerous victims and multiple jurisdictions, largely justifies the protracted length of the proceedings. This approach reflects a nuanced understanding of the principle of undue delay, highlighting that not only time is a determining factor, but also the context in which it occurs. Crucially, case law has established that the burden of the length of the proceedings should not be placed solely on the administration of justice, but that the conduct of the accused may have an impact on this aspect.
The Supreme Court establishes that, when interpreting the mitigating circumstance of undue delay, two aspects must be considered: the existence of a ‘reasonable time’, as established in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees everyone the right to have their case heard within a reasonable time, and the assessment of undue delay, in accordance with Article 24.2 of the Constitution, which prohibits delays in the proceedings that must be analysed in terms of dead time lapses in the sequence of procedural acts. Moreover, the ordinary mitigating circumstance requires that the delays be extraordinary or ‘out of all normality’, while the qualified mitigating circumstance requires an excess that is identified as being radically unacceptable to the defendants.
In the present case, the Criminal Division takes into consideration that the normal duration of the investigation was exceeded by the special characteristics of the criminal acts and by the elements put in place by the perpetrators to hinder their clarification. The offence includes frauds against multiple persons distributed throughout the national territory and perpetrated over a long period of time, which required the taking of statements and the collection of documentation from dozens of injured parties, as well as the sending of letters rogatory to various countries to uncover actions carried out abroad.
It is concluded that the investigative effort and the time invested are not unrelated to the intentional behaviour of the accused, who sought to facilitate their impunity. This analysis relativises the time limits that the Chamber usually uses to assess the highly qualified mitigating circumstance, concluding that, despite the ten years that have elapsed, the classification of the mitigating circumstance of undue delay as highly qualified is not justified, given that the complexity of the case and the obstructive conduct of the accused contributed significantly to the prolongation of the proceedings.
The Court also examined the appellants' allegations concerning the infringement of the principle of presumption of innocence and the validity of the statements taken during the investigation. Although there were irregularities in the management of time limits, it concludes that the defendants' rights of defence were not infringed, as they were properly informed of their procedural status from the beginning of the investigation. This aspect is fundamental to understand how the Court assesses the defence and the evidence presented.
The judgment of the Criminal Chamber of the Supreme Court of 18 July 2024 offers a detailed interpretation of the mitigating circumstance of undue delay, underlining that it is not sufficient to demonstrate the prolongation of the proceedings for its application. In the case under analysis, the complexity of the fraud, involving multiple victims and jurisdictions, together with the obstructive conduct of the defendants justified the lengthy pre-trial investigation period. Despite the ten years of delay, the Court concluded that the circumstances did not allow the mitigating factor to be qualified as highly qualified, as the delays were largely attributable to the very nature of the case and the actions of those involved. This ruling reaffirms the importance of a detailed analysis of each case in order to determine whether the reduction of sentence for undue delay is appropriate.
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