8
there is nothing comparable to a mandatory death penalty, in the sense it has
been given in the matter to which this Opinion refers.
He who kills another will be imprisoned for one to ten years, according to Article
251 of the Criminal Code of Bolivia; and will be punished by sentence of death orders Article 252 - he who kills his descendents, takes a life with premeditation,
malice aforethought or brutality, he who does so for a price, gifts or promises or
by means of poisonous or other like substances etc. In conformance with the
Criminal Code of Chile, the penalty for categorical homicide is maximum
imprisonment for minimum to medium degrees of gravity; he who takes the life of
another with certain aggravating factors (malice aforethought, for reward or
remunerative promise, with poison, brutality, premeditation), will suffer maximum
imprisonment for medium gravity to life imprisonment (Article 391, paragraphs 2
and 1, respectively); and he who kills his father, mother, or child, will suffer
maximum imprisonment for a maximum degree of gravity or death (Article 390).
Under the Criminal Code of Guatemala, imprisonment for fifteen to forty years will
be imposed for causing the death of a person (Article 123); and will punish under the title of aggravated homicide - with imprisonment of twenty-five to fifty
years parricide and murder (homicide aggravated by various elements), however
the death penalty will apply to both categories "if by the circumstances of the act,
the way in which it was committed and the motives which provoked it, it is
revealed that the actor present a great and particular danger" (Articles 131 and
132). (Translation of the Secretariat of the Court.)
13. Having formulated the preceding considerations, it should be recalled that Article
4 of the Offences Against the Person Act, of Trinidad and Tobago, orders that
"[e]very person convicted of murder shall suffer death". That is how the so-called
mandatory death penalty is ordered for a broad - and heterogeneous - range of
homicidal behavior, in which it would be objectively possible to identify - as the
previously cited codes have done, as well as have many other ancient and modern
regimes - different degrees of gravity. With this, the rule that the death penalty
"may be only imposed for the most serious crimes" (Article 4(2) of the
Convention) is neglected, that is, only for those crimes located at the tip of the
pyramid which rises from the least grave to the most severe.
Clearly, in structuring the general punishment for murder in this way, the
direction domestic criminal proceedings may take remains predetermined: the
tribunals lack the possibility of assessing the particularities of homicides to order,
as a logical and juridical consequence of such differences, sanctions which are
equally diverse. The negative aspects of criminal homogeneity ordered where
there exist a heterogeneity of acts, meriting proportionality and individualization,
have been extensively examined - from its own perspective - in the jurisprudence
of the Judicial Committee of the Privy Council. 21
14. A legislator from Trinidad and Tobago itself has advised of the need to classify the
sentence in relation to the gravity of the crimes of murder, clearly overriding the
old formulation of the Offences Against the Person Act. In effect, the State's
Legislature approved the Offences against the Person (Amendment) Act, 2000,
21
In this respect, the judgment in Patrick Reyes v. The Queen, of March 11, 2002, is interesting and
significant. This case was previously considered by the Belize Court of Appeal. Cf., esp., paras. 29, 30, 32,
34, 36, and 40-43.
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