DISSENTING OPINION OF JUDGE MEDINA QUIROGA IN THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS OF NOVEMBER 25, 2004, IN THE CASE OF LORI BERENSON MEJÍA REGARDING ARTICLE 9. I. II. III. IV. V. VI. VII. In this case and others, the Court has indicated the importance of the principle of legality, stating in paragraph 125 of this judgment that “crimes must be classified and described in precise and unambiguous language that narrowly defines the criminalized conduct, establishing its elements, and the factors that distinguish it from behaviors that are either not punishable or punishable but not with imprisonment. Ambiguity in describing crimes creates doubts and the opportunity for abuse of power, which is particularly undesirable when it comes to ascertaining the criminal liability of individuals and punishing their criminal behavior with penalties that exact their toll on fundamental rights such as life or liberty.” The Commission considered that the crime described in article 4 of Decree Law No. 25,475 and contested by the victim’s representatives on the grounds described above, violated Article 9 of the American Convention. This called for the Court to examine it carefully and completely in order to decide whether the definition of the crime was compatible with Article 9 of the American Convention. I agree with the Court’s consideration that the crime described in article 4 of Decree Law No. 25,475 is an autonomous crime. I also agree that the opinion on whether acts of collaboration exist “should be formed in relation to the definition of the crime of terrorism.” However, in my opinion, this affirmation requires the Court to rule on the definition of the crime of terrorism established in article 2 of Decree Law No. 25,475, because it was an essential element of the description of unlawful behaviors in article 4. I regret that the Court did not consider it necessary to examine this point. Examination of this element of the crime appears to be particularly necessary in light of what the national court that heard the Lori Berenson case, and other State bodies, said about it. With regard to the allegation that the definition of the crime was unclear, the judgment of the National Terrorism Chamber of June 20, 2000, indicated: “we cannot say that a proceeding is irregular merely because the definition of the crime is very open or contains very severe sanctions, since the norm establishes the framework of legality, but the Judiciary establishes the framework of justice” (paragraph 88(64)). The judgment of the Constitutional Court of January 3, 2003, ruled on article 2 of Decree Law No. 25,475, which defined terrorism, and decided that this provision was not unconstitutional, and that “within the margins of reasonable ambiguity contained in this norm,” the interpretation criteria established in its judgment would be binding for all legal agents. With this, the said Court appeared to consider that, in order to decide whether a conduct constituted terrorism (and, therefore, in order to determine whether there had been collaboration with terrorism), it was necessary to use certain criteria established in the judgment; this leads to the conclusion that the criteria were absent from the norm itself. In the testimony of Walter Albán Peralta, Ombudsman of the Republic of Peru, presented by the State, the Ombudsman stated that this judgment of