5 psychiatric examination to that end. This does not rule out the defense lawyer’s obligations, but the latter’s obligations do not relieve the court of those that are inherent to its elevated responsibility. 17. It should be recalled that the judge instructs the jury to consider the mental situation of the accused as an important element in establishing the verdict. How can the jury – a group of laymen – do this if they have not received sufficient and clear information – necessarily professional, qualified information – on this point? It cannot be left to the discretion of citizens or even of the judge, who is not a psychiatrist. 18. I cannot endorse the idea that, according to the strict rules of the accusatory criminal procedural system, the judge should abstain from assuming probative initiatives and wait for the parties to request essential measures. I refer to the production of evidence on points on which much more than a secondary procedural advantage depends: the determination of the pertinence of a trial that must necessarily culminate in the death penalty. I consider it unacceptable for a judge to act passively in such a case – the omission referred to in the DaCosta judgment – which can lead to the most serious violation of the applicable norms and lead to an injustice. In this situation, the court – a body that “administers justice” – should take upon itself the effective protection of the legal order and not limit itself to waiting for the other participants in the proceedings to do so. Clearly, the requirement for judicial initiative is not limited to one case, but should be a general rule applicable to all cases in which elements exist to justify it. 19. I agree with my fellow members of the Inter-American Court on the advance implied by the judgment in the case of DaCosta Cadogan in relation to the equivalent decision in the Boyce case. To rectify the violation committed in this case, the punishment imposed must be modified – at the very least. A court should be charged with determining this modification – by its nature a judicial act – through a judicial proceeding. It is worth insisting that the application of punishments – and consequently the modification of punishments that have been applied – is clearly part of the judicial function. The administrative procedure of commutation (if this were the case) or the remedy of pardon, with its component of “mercy,” is not sufficient. When international courts have dealt with the rectification of very serious violations of due process, they have decided that it should proceed through judicial channels, with a hearing and the defense of the individual involved. The Inter-American Court has ruled similarly.