20 70. With regard to Section 2 of OAPA, which reads: “[a]ny person convicted of murder shall be sentenced to, and suffer, death,”51 the Court declared in Boyce et al. that said law impedes the exercise of the right not to be arbitrarily deprived of life, and as such, is per se52 contrary to the Convention and the State has a duty to eliminate or modify it pursuant to Article 2 of that instrument. 71. Furthermore, in the present case, the law in question does not merely exist formally, which is sufficient for the Court to declare a breach of the Convention, but has also been applied to Mr. DaCosta Cadogan by way of judgment. Thus, just as it did in the Boyce et al. case,53 the Court considers that, even though the alleged victim has not been executed, the State has failed to comply with Article 2 of the Convention by both maintaining, per se, and also applying to the alleged victim, a law that restricts his rights recognized under Article 4 thereof (supra paras. 58 and 59). 72. With regard to Section 26 of Barbados’s Constitution, the Tribunal determined in the Boyce et al. case that: [it] prevents courts from declaring the unconstitutionality of current laws that were enacted or made before the Constitution came into force on November 30, 1966. It is referred to as the ‘savings clause’ because it effectively ‘saves’ such laws from constitutional scrutiny. In effect, Section 26 immunizes pre-constitution laws that are still in effect from constitutional challenge even if the purpose of [that] challenge is to analyze whether the law violates fundamental rights and freedoms. Such is the case with [S]ection 2 of OAPA, which has existed since the enactment of the Offences Against the Person Act of 1868. That is, [S]ection 2 of OAPA is a law that existed before the current Constitution came into force, and continues to be the law of Barbados. Thus, by virtue of the ‘savings clause,’ the constitutionality of Section 2 of OAPA may not be challenged domestically.54 73. In that case, the Tribunal found that “[S]ection 26 of the Constitution of Barbados effectively denie[d] its citizens in general, and the alleged victims in particular, the right to seek judicial protection against violations of their right to life.”55 The Court reached a similar decision in another case against Trinidad and Tobago, where a “savings clause” found in that State’s Constitution also had the effect of protecting from judicial scrutiny certain laws that would otherwise breach fundamental rights.56 In both cases, the Tribunal found that the State had failed to abide by its obligations under Article 2 of the Convention. In this case, the Court sees no reason to depart from its previous jurisprudence on this issue. 51 Offenses Against the Person Act 1994, supra note 36 s. 2, (case file of annexes to the application, volume I, annex A.4, folio 120). 52 The Court has held on previous occasions that a law may per se violate the American Convention. Cf. Case of Suárez-Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35, para. 98; Case of Boyce et al., supra note 20, para. 50, and Case of La Cantuta v. Peru. Merits, Reparations, and Costs. Judgment of November 29, 2006. Series C No. 162, paras. 167,174. Cf. also Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50, and 51 American Convention on Human Rights). Advisory Opinion OC-13/93 of July 16, 1993. Series A No. 13, para. 26, and International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 American Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14, paras. 41-43. 53 Cf. Case of Boyce et al., supra note 20, paras. 72-74. 54 Case of Boyce et al., supra note 20, para. 75. 55 Case of Boyce et al., supra note 20, para. 79. 56 Cf. Case of Hilaire, Constantine, and Benjamin et al., supra note 22, para. 152(c), and Case of Caesar v. Trinidad and Tobago. Merits, Reparations, and Costs. Judgment of March 11, 2005. Series C No. 123, para. 115117.