SEPARATE OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ IN RELATION TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS OF SEPTEMBER 24, 2009, IN THE CASE OF DACOSTA CADOGAN (BARBADOS) 1. The case of DaCosta Cadogan, to which I attach this opinion, provides the Court another opportunity to repudiate the obligatory or compulsory death penalty, still included in some domestic legal systems, which is contrary – for reasons that the Court has set out on numerous occasions – to the provisions of Article 4 of the American Convention. Indeed, this domestic legal concept does not restrict capital punishment to the most serious offenses, as established in said Article, as it attributes the same degree of seriousness to unlawful acts that should be typified as different offenses and give rise to different punishments. 2. It is worth mentioning that this does not mean merely individualizing punishments in specific cases arising from the same legal offense, but entails the inadequate typification of punishable conduct. In other words, the requirement of Article 4 extends to both the typification of the conduct and selection of the punishment, and to judicial individualization for the purposes of a conviction. This duality has not always been highlighted. Analysis is usually focused on the second aspect, leaving the first at the margins. 3. Taking this observation into account, it seems pertinent to examine the possible violation of Article 9 of the American Convention, in relation to Articles 2 and 4. Criminal legality – both formal and material, and included in the concept of law supported by the Inter-American Court – is not satisfied by the mere typification, in terms that are reasonably clear and unambiguous, of punishable conduct. This typification must meet all the provisions of the Convention that legitimate or provide grounds for an incriminating norm. For that reason, the domestic legislator has an obligation not to criminalize conduct that should not constitute an offense, to typify conduct whose typification arises from norms of international human rights law (for example, genocide, torture, and forced disappearance), and must separate the different types of unlawful acts that should not receive the same treatment (including offenses of the same kind with different degrees of severity, such as simple homicide, manslaughter, and aggravated homicide) into different types of crimes with different punishments. All this is significant from the point of view of international human rights law and its projection on domestic criminal law, which must be “re-thought,” as some scholars have said, in light of the former and of the jurisprudence of the Inter-American Court, which has already ruled on this matter specifically in relation to the obligatory or compulsory death penalty. 4. I will not make further reference to the reasons on which the Court’s clear and constant position on the so-called obligatory or compulsory death penalty is based, since it has been set out, as I mentioned, on several occasions, leading the Court to decline responding to the advisory opinion requested by the Inter-American Commission on this issue, as stated in the Court's Order of June 24, 2005. 5. However, the DaCosta Cadogan judgment allows the Court to observe the promising signs that are appearing on the horizon of domestic legislation on capital punishment. Evidently, the goal should be the total and definitive abolishment of this sanction, which many people – myself included – have considered and consider unlawful, as well as proven to be ineffective for achieving its proposed objective: reducing crime. The day must come when universal consensus – which for now does not appear to be near – establishes the

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