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welcome these developments and encourage their continuation. They are part of the
indispensable national appropriation of international human rights law, and, specifically,
Inter-American human rights law, which is fortunately increasing. This appropriation has
been occurring in recent years, as I have often stated, through different effective means:
constitutional, legal, jurisdictional, political, and cultural. It must continue. We should not
lose sight of the fact that the international system for the protection of human rights is
subsidiary or complementary to national systems of protection. It is at the national level
where the greatest battle in favor of human rights must be won, encouraged by the
domestic forces that militate for human rights and supported by international bodies – such
as the Inter-American Court – that are called on to perform their tasks in accordance with
their nature and attributions.
9.
In some countries of the Caribbean, capital punishment has remained in force
despite provisions which disfavor them in constitutional texts. Secondary provisions in
criminal matters, specifically those that include obligatory capital punishment, have enjoyed
a sort of immunity from the new constitutions. This is the case in Barbados, with regard to
Section 2 of the Offenses Against the Person Act, the constitutionality of which cannot be
contested because it is prohibited by the “savings clause” contained in Article 26 of the
Constitution. In other words, capital punishment prevails even when it collides with values
and principles contained in the Constitution. Of course, the Inter-American Court has ruled
against secondary provisions that prevent constitutional norms that are more favorable to
the respect and protection of human rights from having full effect. Fortunately, some rulings
of the Caribbean domestic courts or of the Privy Council have gone in that direction.
10.
Important legislative changes have been made on the subject in Jamaica, which has
initiated a new era. Also important is the decision announced by the Government of
Barbados, embracing decisions of the Inter-American Court, that it will reform its criminal
law and adapt it to constitutional principles so as to exclude the obligatory or compulsory
death penalty. It is true that these reforms are still pending – and the Inter-American Court
notes this in the DaCosta Cadogan judgment when considering that there has been a
violation of Article 2 of the American Convention – but it is also true that an explicit political
will can be observed, formally expressed and with broad commitment, which allows us to
suppose that greater changes will soon be adopted in the laws of Barbados.
11.
In this opinion, I wish to refer to an issue that is important, in my view, and which
the Inter-American Court has also noted in this judgment, that is, the failure of the State to
ensure the most thorough defense of the accused who confronts the death penalty due to
the nature of the offense committed and in consideration of particular personal
circumstances. This relates to how due process was understood and applied in this case,
and further, in my opinion, in any similar case. This involves the restriction on the death
penalty arising from procedural issues, in addition to its restriction based on substantive
issues to which I referred in the preceding paragraphs.