7
elements that reduce the gravity and moderate the penalty, as well as
aggravating elements which increase the gravity and increase the penalty. 17
Indeed, criminal legislation usually foresees - as it has for a long-time, and
continues to a greater extent today - other classes of homicide involving
aggravating elements, beyond basic homicide: such as, the relation between
author and victim (parricide), the situation in which the actor placed himself in
order to take the victim's life (homicide qualified by advantage or betrayal), the
motive which provoked the author's conduct (homicide qualified by the purpose of
obtaining remuneration or the satisfaction of immoral desires), the means
employed (homicide qualified by the use of explosives or other destructive
instruments), etc.
It is clear that in all the above cases we are faced with a homicide, but it is also
perfectly possible, as well as necessary and justified, to recommend - within the
context of criminal matters - diverse levels of gravity for behaviours where the life
of another is taken. This definition of seriousness implies a direct consequence in
the penal response: punitive diversity. The trier of fact considers 1) the objective
difference that lies in the classification of the act, as much as, 2) the degree of
culpability of the actor, another relevant question for this case and which must be
kept in mind when individualizing a sentence, where a punishable act - generically
foreseeable - becomes an actual punishment - a specific aspect of the sentence. 18
The sanction is built on both factors.
12. It is useful to consider some examples in this respect, taken from the legislation of
those American countries that maintain the death penalty. In these countries the
gradation according to gravity of each theory of deprivation of life is well
recognized: from homicide to parricide. In all of these countries, there exists a
diversity of penalties corresponding to the diversity in gravity. 19 In such cases 20
17
"According to the extent of the encumbrance on the protected interest the categories are classified
as fundamental or basic and qualified. Those that are fundamental or basic always relate to other interests:
they are those that found the basic concept of the conduct which is to be sanctioned, while qualified
interests delineate a mode of conduct which may be more or less serious. If it is more serious, due to
degree of encumbrance or immorality (…) it will be qualified as aggravated, to the same extent that it
would be qualified as mitigated had the circumstances been the contrary." (translation of the Secretariat)
Zaffaroni, E. Raúl, Tratado de Derecho penal, Parte general, Buenos Aires, EDIAR, t. III, 1981.
18
The following reflection of Ihering is largely applicable: "To the objective element of the interest
threatened in society, the delinquent adds the subjective element of the danger posed to society, by reason
of his willingness to harm and the process by which he elected to carry out his crime. All delinquents guilty
of the same crime do not jeopardize society to the same extent." (translation of the Secretariat) El fin en el
Derecho, Buenos Aires, Bibliográfica Omeba, 1960, p. 237.
19
"Traditionally parricide has been considered to be the gravest crime committed against life,
followed by murder and simple homicide. That is why they appear in this order, from most to least severe,
in our penal codes" (referring to Spanish legislation)(translation of the Secretariat). Ortego Costales, José,
Teoría de la parte especial del Derecho penal, Salamanca, Ed. Dykinson, 1988, p. 240.
20
Evidently, I do not pretend to discuss all the cases that could be invoked on this issue. In the
presenting these examples I summarize the circumstances corresponding to criminal categories and I omit
those details that would unnecessarily extend the descriptions provided without affecting their value. I cite
the legal rules in the terms in which they currently appear in the texts of the Library of the Inter-American
Court-Institute of Human Rights at the time of writing this separate Opinion. If those texts were to be
modified in the future, the reforms would not affect the essence of the problem or the intrinsic value of the
examples.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents