51
by pre-establishing the behavior that is penalized clearly and unambiguously and, on the other hand, it
protects legal certainty.”179
226.
The Court itself wrote that the description of a crime must be in clear, exhaustive and precise
language and drafted beforehand, especially inasmuch as criminal law is the most restrictive and severe means to
establish responsibilities for unlawful conduct, and considering that the legal system must afford the citizenry legal
certainty.180
227.
The Court has also written that when enforcing criminal law, the criminal court judge must
strictly adhere to the provisions of the law and practice the greatest rigor to ensure that the behavior of which the
defendant is accused is a specific type of crime, so as to ensure that the accused is not punished for acts that are
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not punishable under the legal system.
228.
As for the risks created by imprecision in the description of crimes, the Inter-American Court
noted that “[a]mbiguity in describing offenses creates doubts and the opportunity for abuse of power, which is
particularly undesirable when determining the criminal liability of an individual and punishing the latter with
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penalties that severely affect fundamental attributes such as life or freedom.”
229.
In application of the above principles, the Inter-American Court has decided a number of cases
by concluding that the principle of legality was violated due, for example, to the existence of descriptions of crimes
that were so imprecise that the criminal behavior could qualify as one crime, but it could also qualify as another
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crime. The Court drew special attention to the problems created by ambiguities of this type, because what may
be at stake are greater restrictions on due process guarantees depending on whether the crime is one or the
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other; this, in turn, can dictated what penalty will be imposed. The Court also indicated that in these situations,
there is no certainty as to the criminalized behaviors, the elements used to perpetrate the crimes, the objects or
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goods against which the crimes are directed, and the effects on society.
230.
The Inter-American Commission has also had occasion to assess the precision with which crimes
are described, irrespective of how they are connected to other crimes. Thus, for example, in reference to the
crime of injuria in Chile and Venezuela, it wrote that the description is vague and ambiguous and does not specify
clearly the context where that criminal behavior would typically occur, which could lead to broad interpretations
179
IACHR, Application and arguments filed with the Inter-American Court of Human Rights in the case of De la Cruz Flores v. Peru;
referenced in: I/A Court H.R., Case of De la Cruz Flores v. Peru, Merits, Reparations and Costs. Judgment of November 18, 2004 Series C. No.
115, paragraph 74.
180
I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November
20, 2009. Series C No. 207, paragraph 55; and I/A Court H.R., Case of Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 2,
2008 Series C No. 177, paragraph 63.
181
I/A Court H.R., Case of De la Cruz Flores v. Peru. Judgment of November 18, 2004. Series C No. 115, paragraph 82; I/A Court H.R.,
Case of García Asto and Ramírez Rojas v. Peru. Judgment of November 25, 2005. Series C No. 137, paragraph 190.
182
I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru. Judgment of May 30, 1999. Series C No. 52, paragraph 121; and I/A Court
H.R., Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. Series C No. 111, paragraph 174.
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In reference to articles 1, 2 and 3 of Decree Law No. 25.659, and Articles 2 and 3 of Decree Law No. 25.475, Articles 2 and 3,
which describe the crimes of treason and terrorism, respectively, in Peru; there is no way to distinguish when a person is committing one crime,
and when he is committing the other.
See. I/A Court H.R., Case of Cantoral Benavides v. Peru. Judgment of August 18, 2000. Series C No. 69, paragraph 153; I/A Court H.R.,
Case of Castillo Petruzzi et al. v. Peru. Judgment of May 30, 1999. Series C No. 52, paragraph119.
184
I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru. Judgment of May 30, 1999. Series C No. 52, paragraph 119; and I/A Court
H.R., Case of Lori Berenson Mejía v. Peru. Judgment of November 25, 2004. Series C No. 119, paragraphs 119.
185
I/A Court H.R., Case of Lori Berenson Mejía v. Peru. Judgment of November 25, 2004. Series C No. 119, paragraph 117.