2
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
prohibition of capital punishment within the framework of jus cogens, as in the case of
torture.
6.
Nevertheless, abolition is not included in the provisions of the American Convention
on Human Rights, which tends towards this, but does not eliminate the punishment; it
merely reduces, minimizes, and conditions it. The penalty is limited, as much as it was
possible to do so at the 1969 Conference of San José, through different kinds of restrictions:
(a) substantive, regarding the offenses to which it applies (the point at which the issue of
the obligatory or compulsory death penalty appears); (b) procedural, regarding the
characteristics of the proceedings and the means of objection, appeal or substitution that
should be observed therein; (c) subjective, regarding persons – groups or categories of
persons – to which this punishment cannot be applied or who cannot be executed even if it
has been imposed on them, and (d) for reasons of progressive development, inasmuch as
the death penalty may not be re-introduced once it has been abolished.
7.
The abolition sought by the fourteen States that signed an abolitionist declaration
presented during the 1969 Conference (even by some that delayed excluding it from their
domestic law or that have still not done so), has again been proposed in a specific protocol
on the matter. It should be said that it does not, as of yet, involve complete abolition, as
would be desirable: only relative abolition, inasmuch as the possibility of retaining the death
penalty remains open for very serious alleged offenses in a situation of war. Also, it is
remarkable, in a negative sense, that this protocol has been ratified by the least number of
States of all the instruments that make up the Inter-American human rights corpus juris:
only 11 States have ratified it, in contrast, for example, to the 24 that have ratified or
adhered to the American Convention itself (still a very reduced number; the aspiration
continues to be the universalization of rights and their guarantees: rights and courts for
everyone), or in contrast to the Convention for the Elimination of Violence against Women
(Belem do Para), which has been ratified by 32 States, the greatest number in our regional
experience, in the same way that a large number of States are parties to CEDAW.
8.
In any case, we must observe what I have called the promising signs on the horizon
that are materializing in recent developments in the Caribbean countries. We should