SEPARATE OPINION OF JUDGE SERGIO GARCIA RAMIREZ IN RAXCACO REYES V. GUATEMALA. JUDGMENT OF SEPTEMBER 15, 2005 A) THE DEATH PENALTY IN THE AMERICAN CONVENTION AND THE INTERAMERICAN CASE LAW 1. In the case referred to by this separate opinion accompanying the judgment adopted unanimously by Inter-American Court, the Court once again broaches the issue of the death penalty, previously examined in the performance of the Court’s advisory functions: OC-3/83 on Restrictions to the Death Penalty (Articles 4(2) and 4(4) American Convention on Human Rights) of September 8, 1983, and with regard to the contentious matters raised in various applications: the Hilaire, Constantine and Benjamin et al. cases (judgment of June 21, 2002) and the Fermín Ramírez case (judgment of June 18, 2005), to which I will refer at some length below. In addition, the Court issued an order on June 24, 2005, as a result of a consultation submitted by the Inter-American Commission on Human Rights concerning matters relating to capital punishment, which I will also examine 2. Thus, there is nothing new as regards raising such issues before the interAmerican jurisdiction; however, each case has contributed relevant aspects to them. The analysis of these aspects helps shape the Court’s legal doctrine on this point of law, whose importance is evident and, as a whole, they involve a contemporary review of the matter from the perspective of inter-American case law. In recent years, particularly, this has begun to permeate strongly the laws and case law of the countries that have accepted the Court’s contentious jurisdiction. The reiteration of certain principles can have an influence on the political and juridical decisions of the countries of the hemisphere. Moreover, this effect is the greatest contribution that an international human rights court can make, since it is not a final instance for hearing domestic lawsuits and cannot hear a large number of cases. 3. When the final version of the American Convention on Human Rights was examined and signed in 1969, there was a strong “pro-life” tendency that contested the legitimacy and the utility of the death penalty. This tendency, which was very strong at both the regional and the global level, was revealed by the work of the Inter-American Specialized Conference on Human Rights, which met in San José from November 7 to 22, 1969. At that time, it was not possible to take the essential step of abolishing the death penalty. Perhaps the delegates did not encounter favorable conditions for this step forward; nevertheless they did not overlook the desirability of issuing a ruling that expressed the belief of many countries – and, in any case, of innumerable persons – that capital punishment should be eliminated. This was a warning sign and a guideline for future work, which is still ongoing. 4. As I recalled in my concurring opinion to the judgment in the Hilaire, Constantine and Benjamin et al. cases, 14 States – that is, most of those present at the meeting in San José – expressed their intention of advancing the cause of humanity very shortly by abolishing capital punishment. During the plenary session of November 22, 1969, following the signature of the final Conference Proceedings and before the closing address, the declaration signed by these States was read. It established the desirability of issuing an additional protocol to the American Convention stipulating the elimination of the death penalty in this region.