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elements mentioned above must concur for an act to constitute the crime defined in
Article 2 (paragraph 78 bis).
14. The considerations made by the Constitutional Court are binding upon all public
authorities and, specifically upon the courts (paragraph 27). The decisions rendered
by the Constitutional Court may be interpretative or amendatory, either by way of
addition or substitution. Amendatory decisions by way of addition do not render a
precept unconstitutional, but only the omission and, as a result, “the omission is to
be regarded as incorporated into the provision” (paragraph 30). In turn, amendatory
decisions by way of substitution only render a portion or part of the challenged
statutory provision unconstitutional and, in addition, the provision is provided with a
different content, in accordance with the constitutional principles that were breached.
The decision of January 3, 2003 does not specify its nature, but it may be considered
to be, at a minimum, amendatory by way of addition, insofar as it included a series
of considerations that are binding upon the courts. The addition of these
considerations is a further indication that the language of Article 2 could have
provided a better definition of the crime.
In its arguments, the State itself maintained, in relation to the alleged
violation of Article 9 of the Convention, that the Constitutional Court had remedied
the challenges raised against the anti-terrorist legislation, as well as the provisions
contained in subsequent Legislative Decrees No. 921, 922, 923, 924, 925, 926, and
927 (paragraph 178 of the judgment of the Inter-American Court).
15. Notwithstanding my view that the decision analyzed here does not resolve the
objection raised in paragraph 9 of this opinion, in the sense that Article 2 does not
require that the acts be committed with the intent to cause consequences that
somehow imply terrifying the public or the Government; rather, intent is only
incorporated as a requirement for the commission of the act (for example, intending
to destroy a means of transport), the fact that Article 2 of Decree-Law No. 24.575
had not been supplemented by the considerations discussed above at the time it was
applied to Wilson García suffices to hold that it violated the nullum crimen nulla
poena sine lege praevia principle.
16. From a different point of view, given that imprisonment is a restriction on the
right to personal liberty, it is also reprehensible that the law fails to consider that
restrictions must be proportionate and, therefore, so must be punishment. There
must be proportionality between the severity of the offense and the ensuing punitive
reaction; that is to say, the less serious the offense, the less severe the punishment
and the less significant the participation of the accused in the crime, the less severe
the punishment. Article 4, which defines and punishes collaboration -a crime that, by
the lawmaker’s decision, is independent of aiding and abetting, which usually carries
a lesser punishment-, imposes the same minimum penalty as that imposed on the
perpetrator. It would be the responsibility of the State to justify such restriction,
which, at first glance, seems to violate the principle of proportionality of restrictions
on human rights and, therefore, the proportionality of punishment.
17. Finally, it should be noted that the nullum crimen nulla poena sine lege praevia
principle not only refers to the need to describe, as clearly as possible, the conduct
underlying a criminal charge of terrorism or other related crimes, but also requires
that the punishment be within the statutory range. Articles 2, 3, and 4 of DecreeLaw No. 24.575 establish the minimum penalties, but not the maximum penalties,