4
9.
This is a very persuasive argument in support of the need for the
individualization of sentences, as a capability intrinsic to the exercise of judicial
power. In addition, in the 1960s, Marc Ancel pointed out the then discernible
tendency, of gradual abandonment of the so-called “mandatory nature” of the death
penalty, 12 which today only exists in a small number of countries (above all former
British colonies). This is due, in part, to the growing influence of the French concept
of “mitigating factors,” which has recognized the discretional power of national
tribunals to impose sentences other than capital punishment, 13 upon determining the
different levels of criminal responsibility.
10.
In the present Judgment on the merits and reparations in the Hilaire,
Constantine and Benjamin et al. v. Trinidad and Tobago Case, the Court has
correctly resolved this question in the circumstances of the cas d’espece, 14 upon
finding that the Offences Against the Person Act of 1925 of Trinidad and Tobago
orders the automatic and generic imposition of the death penalty for the crime of
murder and fails to recognize that murder can have varying degrees of severity,
which should be duly taken into account and evaluated by the judge, especially when
the most valuable legal right, the right to life, is at risk.
11.
The arbitrary nature of the aforementioned Offences Against the Person Act in
particular, and of Trinidad and Tobago’s domestic law in general, 15 is manifested in
different phases of the judicial process, such as the determination of criminal
responsibility (without taking into account the particular circumstances of the
criminal), and sentencing (with the “requirement” that capital punishment be
imposed in murder cases – paras. 103 and 104), as well as blocking the effective
reconsideration or review (paras. 186, 188, and 189). It consists of an arbitrary Act
that is fons et origo of further arbitrary acts. As the Inter-American Court correctly
and categorically affirms in the present Judgment, “the way in which the crime of
murder is punished in the Offences Against the Person Act is in and of itself a
violation of the American Convention on Human Rights.” (para. 211)
12.
Indeed, arbitrariness is found whenever a legal procedure does not conform
to the dictates of reason – as determined by the rectae rationis – but rather is issued
only by the will of power (and the unlimited use of it). It is, thus, perfectly possible
that an order is arbitrary, even though it is based on a positive law. This occurs
when the dictates of said law are allowing to trump reason, obeying only “the
fortunate whim of the person in power.” 16 Acting with discretion (duly accounting for
the circumstances of a specific case) is not the same as acting arbitrarily; acting with
discretion means “being guided by general principles, applying them to the
12
p.85.
Capital Punishment, N.Y., United Nations, 1962, p. 11, para. 14, cited in R. Hood, infra note 13,
13
R. Hood, The Death Penalty: A Worldwide Perspective (A Report to the United National
Committee on Crime Prevention and Control), Oxford, Clarendon Press, 1990 (reprint), p. 87.
14
As developed in paragraphs 103-104, 106, and 108.
15
With respect to petitions for amnesty, pardon or commutation.
16
L. Recanséns Siches, Tratado General de Filosofía del Derecho, 7th Edition, México, Editorial
Porrúa, 1981, p. 216 (Translation by the Secretariat of the Court).
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