신속한 재판을 받을 권리* - 유럽인권재판소의 결정례를 중심으로

This essay is a kind of introductory description of the current understandings of the right to trial in reasonable time, which is now accepted as one of the most important procedural rights of human kind. In Korea, this right is the most widely guaranteed when viewed from the text of the Constitutional Law but, in reality, Korean judiciary including the Constitutional Court, does not seem to accept it seriously. Most decisions that the judiciary has made regards the right as a sort of programmatic declaration, which shall be subject to the discretionary judgment of the court as well as the legislature. This essay is designed against such misunderstanding and/or mis-interpretation. Such one is radically contrary to the present postulations that most human rights regimes have produced till now. This is the reason why this essay focuses not on explanation but on description, based on which it is expected to develop any further theories and practices. In this essay, several human rights regimes, such as the UNHCR, U.S., Canada, U.K., and EU are dealt with. Among them, the ECtHR has produced the most abundant and salient judgments on the right: its meaning, purpose, its criteria for application, and the effect of the decision of violation of it, as well. The ECtHR declares that the right be no programmatic but a concrete and directly enjoyable right against the State, which shall have no margin of appreciation on protecting and respecting that right. The Court has established the principle that the State shall be obliged to protect and respect that right diligently as well and such obligation shall be strengthened to higher level of special diligence when the subject is detained. Surely, there are some problems unsolved yet, one of which is the effect of the judgment that the State violate that right. In that case, some nations such as U.S and Canada declare that the trial shall be stayed whereas the other nations such as U.K as well as ECtHR do not intervene into the pending procedure of the trial. This difference seems to be resulted from the difference of their constitutional systems and ways of approaching the right, but it is also true that more universalized standard of de jure effects of the right shall be made, sooner of later. This essay, based on such observations, dares to ask Korean judiciary to change its silly attachment to securing wide discretional powers on trial procedure, which actually and legally makes the right to speedy trial nominal and empty one. The right can not ever be abstract programmatic target achieved by the judiciary's will. It is the very right that all the human rights regimes have tried to achieve in reality and in present. It is the right that we the korean people shall enjoy right now.