49
a)
according to Article 2 of Decree Law No. 25.475, the crime of terrorism
is committed by a person who “creates […] a state of anxiety […] or fear
among the population” or who “carries out acts against life, personal security
or against the patrimony, against the security of public buildings, byways,
power stations or any other good or service, using weapons, explosive
materials or devices or any other means capable of causing damage or
seriously disturbing the peace;”
b)
according to Article 1.a) of Decree Law No. 25.659, the crime of
treason against the fatherland is committed by a person who commits “the
acts considered in Article 2 of Decree Law No. 25.475, when the following
methods are used: car bombs or similar bombs, explosive devices, weapons
of war or similar weapons, which cause the death of persons or injure their
physical integrity, or damage public or private property;” and
c)
it is a fact that Article 2 of Decree Law No. 25.659 specifies the
characteristics of the perpetrators of the crime of treason. However, in doing
so, it refers not only to certain special conditions, such as being the leader or
head of a terrorist organization, and belonging to armed groups or bands
responsible for the physical elimination of persons, but also contributing to
“the harmful outcome” of the crime in question by “supplying, providing,
disseminating reports, data, plans, projects and other documents.”
155. In light of the provisions transcribed above, the Court considers that the
definitions of the crimes of terrorism and treason against the fatherland do not
clearly describe the criminal acts in question, the elements used in their commission,
the objects or assets against which they are directed, and the impact they have on
society. Also, the inclusion of such broad methods of participation in the commission
of the corresponding crime, such as those covered in Article 2 of Decree Law No.
25.659, alters the definition of the perpetrator of treason against the fatherland,
bringing this crime and the crime of terrorism so close together that they become
one.
156. As the Court asserted on an earlier occasion, the “existence of common
elements [in the crimes of terrorism and treason against the fatherland] and the lack
of precision in drawing a line between both affects the legal situation of the accused
in different ways: the applicable sanction, the competent tribunal and corresponding
trial.” 64
157. In defining the crimes, it is necessary to keep the principle of criminal legality
in mind; in other words,
a clear definition of the illegal conduct, which sets forth its elements and makes it
possible to distinguish it from non-punishable behavior or illegal activities punishable
with non-criminal measures. Ambiguity in the definition of the crime creates doubt and
gives authorities discretion, which is particularly undesirable when establishing the
criminal liability of individuals and imposing sentences that have a serious impact on
fundamental rights such as life or liberty.65
64
Castillo-Petruzzi et al. Case, supra note 9, para. 119
65
Castillo-Petruzzi et al. Case, supra note 9, para. 121
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