7 27. If aggravated homicide is the most serious crime, the possibility of applying the death penalty should be confined to this case. I prefer not to enter into other considerations on this matter now, such as those derived from the difference between aggravated homicide when the victim is an individual and the same conduct (essentially) when the victim is a group or a multitude (e.g. genocide). Ultimately, all these cases refer to intentional, illegal and culpable deprivation of human life. 28. Other crimes are not as serious, because they do not affect a right of the same rank as human life. Other rights are not comparable, even though they are extraordinarily relevant and must, therefore, be protected by penal laws: physical or mental integrity (injuries), freedom (kidnapping or abduction), property (theft), etcetera. In brief, the most serious crimes, which entail the application of the most severe punishments and, specifically, the most severe of these: death, and which can be punished by the death penalty (in a State that retains this and must subject this retention to the stipulations of the American Convention) are aggravated homicide. 29. The excessive application of the penal system – and, because it is excessive, possibly arbitrary, in violation of Article 4 of the Convention – revealed by meting out the most severe punishment for acts that do not constitute the most serious crimes, is also evident when the penal laws exclude the possible of the court weighing the characteristics of the act and the conduct of the perpetrator. This is what occurs in the case of the “mandatory death penalty.” 30. When the mandatory, almost mechanical, application of a specific punishment is ordered for any illegal conduct that produces a determined result, the comprehensive assessment of the fact with all its components is excluded (in other words, the possibility of distinguishing between simple homicide and aggravated homicide is prevented; and these are not the same crime, even though the result is the same in both cases: deprivation of life); also, the assessment of the guilt of the agent is omitted, which is a necessary reference for a rational determination of the punishment. 31. In this case, the Court has considered that another substantive aspect of the authorization contained in Article 4(2) to which I referred above has been violated: the restriction of the death penalty only to the crimes to which it is applied presently (namely, to those that were punished with the death penalty when the State became bound by the Convention) and the consequent and absolute exclusion of crimes “to which it is not applied presently.” 32. When the State ratified the American Convention, a text of Article 201 was in force according to which: (a) the kidnapping or abduction of a person, for specific purposes, would be punished with from 8 to 15 years of imprisonment, and (b) the kidnapping or abduction associated with the death of the victim (a death “because of or during the kidnapping or abduction”) – in other words, acts that culminated in a twofold result (deprivation of liberty and deprivation of life) – would be punished by the death penalty. 33. In this context, the State could maintain the application of the death penalty in the case mentioned in the preceding paragraph sub (b), punished with the death penalty, but not in the hypothesis identified sub a), which, at the time, was only punished by deprivation of liberty. It appears evident, but it is necessary to emphasize this, because it is a central element of the contentious matter submitted