CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ REGARDING
THE CASE OF TRISTÁN DONOSO v. PANAMA, OF JANUARY 27, 2009
1.
I have concurred with my fellow justices sitting in the Inter-American Court of
Human Rights when delivering the judgment disposing of the Case of Tristán Donoso v.
Panama, the examination of which gives rise to several issues the Tribunal has
analyzed and determined. I deliver the instant concurring opinion in order to set forth
complementary considerations or to revisit Court case law.
The principle of legality
2.
In this dispute –as in others, which as a whole have permitted the development
of a worthy jurisprudence- the violation of the principle of freedom from ex post facto
laws provided in Article 9 of the Convention has been the matter. Such principle is,
without any doubt, one of the most important references in criminal matters ─which
does not mean it is not applied to other matters─, and derives from the reforming
trend that tried to, and succeeded in, “reconstructing” punitive Law form the XVIII
Century onwards.
3.
Legality, a guarantee of the greatest value concurring to define the Rule of Law
and to exclude authoritarian discretion, entails several questions the Inter-American
Court has examined. For the time being, the different sign the rule of legality shows in
the system having its roots in Continental European ─ statute ruled ─ and the
Common Law System is not included among such questions. Neither has the relation
such rule bears to the principle enshrined in Human Rights and Criminal International
Law whereby behaviors in breach of general principles of law, and widely recognized as
illegal, have been punished. I set aside, for the time being, such aspects of the issue.
4.
Court case law has referred to the nuclear or literal concept of legality:
provision for a crime and its legal consequences in the penal rule, under the maxim
nullum crimen nulla poena sine lege. Of course, the Tribunal has also studied
procedural and executive legality. If the punished conduct has not been established by
statute, the principle of legality has been manifestly violated.
5.
Such breach also appears when the legal description of the behavior is
equivocal, confusing, ambiguous to the point of prompting diverging constructions
(“fostered” by the lawgiver and ushering discretion) and of leading to different penal
consequences, as reflected in punishment and prosecution, for example. Hence the
requirement for strict specification of punishable behaviors, under the principle of
legality.
6.
The case law of the Court likewise indicates that the State cannot include just
any conduct in a criminal description, nor group thereunder different behaviors to be
uniformly punished, regardless of the diverse elements concurring in the illegal action.
In doing so, it would break the penal framework admissible in a democratic society: a
framework that in the course of recent centuries has become more and more specific
and demanding, although it has had to suffer from some authoritarian relapses as well.
7.
Inn other words, there are limits for the powers of crime description and
punishment lying in the hands of lawmaking bodies (it is, for example, inadmissible to
incriminate conducts which are naturally lawful: such as medical care; or to consider in
a uniform manner and indiscriminately widely differing hypothesis of life deprivation,