3
Political Rights aiming at the abolition of the death penalty was signed and adopted
by the United Nations General Assembly. In Europe, two protocols to the 1950
Convention were signed with the same increasingly emphasized purpose: Protocol
No. 6 of April 28, 1983, and Protocol No. 13 of May 3, 2002.
10.
In our hemisphere, the Protocol to the American Convention on Human Rights
to Abolish the Death Penalty of June 8, 1990, was signed. Up until June 2005, this
instrument had been ratified by Brazil, Costa Rica, Ecuador, Nicaragua, Panama,
Paraguay, Uruguay and Venezuela. The 1990 American Protocol has begun its own
ascent towards full acceptance by the States of the hemisphere or, at least, by an
important number of them: the members of the American Convention on Human
Rights system. It constitutes the target announced by those 14 countries that
submitted the Declaration I mentioned above to the Specialized Inter-American
Conference on Human Rights.
11.
The preambular paragraphs to the 1990 Protocol express the reasons for the
instrument: recognition of the right to life and restriction of the death penalty, under
Article 4 of the Convention; the inalienable right of everyone “to respect for his life, a
right that cannot be suspended for any reason”; the tendency of the American States
to favor the abolition of the death penalty; the irrevocable consequences of the
application of the death penalty, which “forecloses the correction of judicial error and
precludes any possibility of changing or rehabilitating those convicted” (a reference
to the “readaptation” purpose of punishments involving deprivation of liberty,
reflected in Article 5(6) of the American Convention); the need to “ensure more
effective protection of the right to life”; the pertinence of arriving at “an international
agreement [...] that will entail progressive development of the American Convention
on Human Rights”; and the expression of the intention of the States Parties to the
Convention “to adopt an international agreement with a view to consolidating the
practice of not applying the death penalty in the Americas.”
12.
It is evident that the 1990 Protocol continues on the path towards the
elimination of the death penalty, in its own sphere and at the corresponding stage,
an elimination that we trust will be final, as has been the normative exclusion – even
though at times actions rebel against laws – of other primitive and unjustified forms
of response to crime. It is in this restrictive sense, then, that Article 4 must be
interpreted. In this case, the pro homine – or pro personae – principle invariably
endorsed by the Inter-American Court, as is to be expected of the human rights
system (attentive to the content of the corresponding juridical declarations and to
the nature of the respective international conventions), follows the most restrictive
application of the death penalty. It does not eliminate it, when trying to apply treatybased provisions that expressly retain it, but provides the strictest interpretation of
these norms.
13.
This reference to the Court’s method of interpretation in cases submitted to
its consideration, and which it has clearly used in the Case of Raxcacó Reyes, as on
previous occasion, allows us to recall that pro personae constitutes a method of
examining the ultimate meaning of juridical provisions in the sphere that concerns us
for the effects of their jurisdictional or non-jurisdictional application; in this sense, it
is a “principle of interpretation” that is amply accredited, but it is also a rigorous
principle for the elaboration of national and international norms on this issue, and
owing to this, it is also “a principle of regulation.”
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