5
preventative or precautionary, to avoid irreparable damage from being inflicted on
people.
Now, in the present case there does not merely exist a law which in itself
contravenes the American Convention, which would invoke the considerations that
I have referred to above and could justify - from a certain doctrinal perspective the deliberation and judgment of the international tribunal. One more stage in the
iter has been completed: the law was applied by way of judgment; 14 it was
already decided, individually and imperatively, that the lives of certain persons
must be taken. The accused's right, regarded as potentially jeopardized by the
law, in the end was in fact affected by the judgment. For the accused, the
deprivation of life is not merely a possibility, rather it is an imminent reality to
which the punitive power of the State is directed, formally and explicitly.
7. The first issue I propose to examine with respect to the incongruity between the
Offences Against the Person Act and the American Convention concerns the
limitation in the application of the death penalty to only the "most serious crimes"
as stated in Article 4(2) of that international instrument. It is important therefore
to identify those crimes that are "the most serious" in a determinate time and
space within criminal law. These must be identified and the natural result of a
classification of this category - diverse sanctions - be speedily adopted to be able
to inform criminal legislation, the reason and intention being two-fold: justice and
effectiveness. The same classical thinker whom I cited above best summarized
this concern in stating: "If the same punishment is meted out for crimes which
unequally offend society, men will not encounter a very significant obstacle in
committing the more depraved crime, where they perceive in it a greater
advantage." 15
8. I would like to address an idea now, rather than later, that has been presented on
occasion and which proposes that the "most serious" crimes be identified as those
which are sanctioned by capital punishment, the most severe of all penalties. 16
This characterization is unsatisfactory, and for the purposes of this Opinion, it is
also tautological. It is easy to caution, that if such a criteria were adopted a
determination as to gravity - which entails a determination as well as to protected
interests and basic rights - would remain subject to a vacillating discretion.
Instead of relating the seriousness of a crime to its corresponding penalty, the
severity should be linked to the intrinsic gravity of the crime. It is not the
seriousness of the punishment that determines the seriousness of the crime, but it
is the latter which justifies the former. In sum, it is necessary to place the terms
14
In various cases, the United Nations Human Rights Committee has found a violation to the right to
life of an offender sentenced to death - not yet executed - when the sentence was dictated without due
observance of due process guarantees. Wright v. Jamaica, Communication No. 349/1989; Simmonds v.
Jamaica, Communication No. 338/1988; Daniel Monguya Mbenge v. Zaire, Communication No. 230/1987.
15
(Translation of the Secretariat) Beccaria, De los delitos y de las penas, cit., p. 37. The same
author cautions that the threat of harsher penalties for many crimes, in fact impedes "the essential
proportionality between crime and punishment" (translation of the Secretariat) Id., p. 73. Included in this
edition, annotated by Juan Antonio Delval, are some relevant observations of Montesquieu. In one of these,
Montesquieu expresses his amazement that there exist "one hundred and sixty (acts) declared capital
crimes by act of Parliament, that is, crimes that must be punished by sentence of death", (translation of
the Secretariat) amongst which there exist behaviors of varying degrees of severity (Oberservations d'un
voyageur anglais sur Bicêtre, 1788).
16
With respect to this argument, cf. the opinions included by Rodley, Nigel S., The treatment of
prisoners under International Law, Oxford University Press, 2nd.ed., 1999, p.219.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos