CONCURRING OPINION OF JUDGE EDUARDO RAÚL ZAFFARONI CASE OF DÍAZ LORETO ET AL. V. VENEZUELA JUDGMENT OF NOVEMBER 19, 2019 (Preliminary objections, merits, reparations and costs) I understand that the proven facts in the instant case also constitute a violation by the State of Venezuela of Article 4(2) and (3) of the American Convention on Human Rights (ACHR). Following its abolition, the prohibition to re-establish the death penalty (Art. 4(3) ACHR) cannot be limited by enacting a law that establishes this punishment, which is then potentially imposed by a judge under the said law; in other words, the formal re-establishment of capital punishment. The ACHR prohibits the re-establishment of the death penalty both de jure and de facto; in other words, a fortiori, the reiterated practice of armed agents of the State executing individuals, without any judicial formalities because they consider that the latter are involved in offenses is also prohibited. It would be absurd to consider that a State that enacts a law imposing the death penalty after having abolished this violates human rights, while the execution of that law or lawless execution is not considered similarly. In other words, the death penalty is re-established de facto, a situation that is much more serious because it leaves this to the arbitrary criteria of executive officials without any prior judicial intervention. The genus “penalty” covers the violation of a right by state agents as a result of an alleged or proven offense. As series, this genus includes both lawful and unlawful penalties because, to the contrary, it would be absurd to refer to “prohibited penalties” or “illicit penalties.” It is evident, consequently, that prohibited or illicit penalties are still penalties. Recognizing the nature of “penalty” to unlawful penalties based on their genus has different consequences, such as the need to consider them penalties served in circumstances in which the victim has been convicted or is serving an unlawful sentence for the same act. Moreover, this is necessary – for example, in the case of torture, cruel treatment, bodily injury, etc. – because the contrary would lead to the absurd situation in which the State would only consider that lawful penalties are served and not the unlawful penalties that it executes, permits or does not prevent its officials from executing. The facts of the instant case have not been clarified but, taking into account the proven context in the case, which has even been admitted by the State itself, it relates to a typical situation in which the execution of de facto death penalties (also called extrajudicial executions” and “executions without trial”) is concealed. In view of the context, the State has an increased obligation to clarify the facts in this type of situation which is officially recorded as a confrontation between police and offenders. This obligation is increased when – as in the instant case – the offense in question is a minor theft or robbery and the final result is the death of three individuals. The contradictions among the witnesses, the flaws in the autopsies, the strange presence of sewage, etc. all of which remain in a cloud of doubts, reveals serious defects in forensic practices, in a case that called for extreme care in their execution.