83
178. The principle of the retroactivity of the most favorable penal norm is
established in Article 9 in fine of the Convention, when it indicates that, if
subsequent to the commission of the offense the law provides for the imposition of a
lighter punishment, the guilty person shall benefit therefrom. This norm should be
interpreted in good faith, in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in light of the object and purpose of the
American Convention, which is the effective protection of the individual,154 and also
by an evolving interpretation of the international instruments for the protection of
human rights.
179. In this respect, both the law establishing a lighter punishment for offenses,
and the one encompassing norms such as those that decriminalize a behavior which
was previously considered an offense, or create a new motive for justification or
innocence, or an impediment to the effectiveness of a penalty, should be interpreted
as the most favorable penal norm. The foregoing is not a closed list of cases that
merit the application of the principle of the retroactivity of the most favorable penal
norm. It is worth emphasizing that the principle of retroactivity is applicable to laws
enacted before the judgment was delivered and during its execution, because the
Convention does not establish a limit in this respect.
180. According to Article 29(b) of the Convention, if any laws of any State Party,
or another international convention to which the said State is a party, grant greater
protection or regulate more broadly the enjoyment and exercise of some right or
freedom, the State shall apply the most favorable norm for the protection of human
rights.155
181. It should be recalled that, on several occasions, the Court has applied the
principle of the most favorable norm to interpret the American Convention, so that
the most favorable alternative for the protection of the human rights enshrined in
this Convention should always be chosen.156 As this Court has established, if two
different norms are applicable to a situation, “the norm most favorable to the
individual must prevail.”157
182. Having examined the principles of legality, non-retroactivity of the
unfavorable norm, and retroactivity of the most favorable penal norm, the Court
must now determine whether, in this case, Paraguay violated the latter principle. It
154
Cf. Case of 19 Merchants, supra note 2, para. 173; Case of Baena Ricardo et al. Competence.
Judgment of November 28, 2003. Series C No. 104, paras. 94, 98, 99 and 100; Case of Cantos.
Preliminary Objections. Judgment of September 7, 2001. Series C No. 85, para. 37; and Case of
Constantine et al. Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, paras. 75 and
86.
155
Cf. Compulsory Membership in an Association prescribed by Law for the Practice of Journalism,
supra note 114, para. 52.
156
Cf. Case of Herrera-Ulloa, supra note 15, para. 184; Case of Baena-Ricardo et al., supra note
139, para. 189; Case of Baena Ricardo et al. Preliminary Objections. Judgment of November 18, 1999.
Series C No. 61, para. 37; and Certain Attributes of the Inter-American Commission on Human Rights
(arts. 41, 42, 44, 46, 47, 50 and 51 American Convention on Human Rights). Advisory Opinion OC-13/93
of July 16, 1993. Series A No. 13, para. 50.
157
Cf. Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of
September 17, 2003. Series A No. 18, para. 21; and Compulsory Membership in an Association prescribed
by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory
Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 52.
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