7 contain mitigating 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.