10
of the Criminal Code.
E) Pardon
39. Finally, the Court has dealt with the matter of pardon, appeal to which the
accused convicted to death must have access, in the terms of Article 4 of the
American Convention. Obviously, to have the right to present this appeal does not
necessarily mean the right to a favourable response. The pardon is gradually being
removed from criminal legislation. In it we still find the remote power of pardon of
the absolute monarch, lord of lives and estates, who precisely because of that could
dispose of the life of the accused, saving him from the death ordered by the court.
The criminal rationality, found in the political and judicial rationality, suggests that
this figure should be eliminated, without this preventing the establishment, in its
place, of appropriate substitutes that allow the conversion of the punishment
imposed when there are causes that justify it.
40. The Court appreciates that the State lacks a certain and adequate regimen
regarding the pardon. If this subsists, a matter that concerns a State decision, it
must not be extent of precise rules regarding the authority called to grant it, the
grounds for its granting, and the procedure to decide on it. On the contrary, it would
be an expression of pure discretion, foreign to a Constitutional State in a democratic
society. Even when it is a power to pardon, it is necessary that it be exercised with
clarity and rationality.
Sergio García Ramírez
Judge
Pablo Saavedra Alessandri
Secretary
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