8 measure that shall only be used in cases expressly designated by law and that shall be carried out only after all legal remedies have been exhausted.” 17 26. Article 132 of the Criminal Code in force in 1995 classified murder in the following terms: Murder is the killing of another person: 1) With malice aforethought. 2) For pay, recompense, or promise of either. 3) By means of or involving flooding, fire, poison, explosions, collapse of a building, or another tactic that could cause great destruction. 4) With clear premeditation. 5) With cruelty. 6) With an impulse for brutal viciousness. 7) To prepare for, facilitate, perpetrate, or hide another crime; to ensure its results or to evade punishment for oneself or one’s partners in crime; or because of a failure to obtain the intended result of another punishable offense. Murder carries a prison sentence of 20-30 years, but the death penalty shall be imposed instead of the maximum prison sentence if the perpetrator is deemed especially dangerous due to the circumstances of the act or the setting, the manner of carrying it out, or the underlying motives.18 27. The death penalty was applied only occasionally until the 1990’s. However, the State began to apply it again in 1996,19 first by firing squad, pursuant to Decree No. 234 of the Congress of the Republic,20 and later by lethal injection, after Decree No. 234 was abrogated by Decree No. 100-96 in November of 1996, establishing this new method of execution. 21 28. Decree No. 159 of April 19, 1892, of the National Legislative Assembly established the remedy of clemency as a final recourse available in Guatemalan legislation to grant a pardon or commute a sentence, and it set forth the procedures for doing so. On June 1, 2000, Decree No. 159 was abrogated by the Congress of the Republic of Guatemala through Legislative Decree No. 322000. A.2. Legal framework concerning the joint defense of accused individuals 29. Article 95 of the Code of Criminal Procedure states that: the defense of several accused individuals in the same proceedings by the same counsel is, in principle, inadmissible. The court with jurisdiction according to the stage of the proceedings, or the Public Prosecutor, can allow joint defense when there is clearly no incompatibility. When there is incompatibility, it can be corrected by providing the necessary public defenders, according to the procedures for assigning counsel.22 e. On those who have been granted extradition on the condition that the death penalty will not be applied. Against a sentence that imposes the death penalty, all of the pertinent legal remedies, including that of cassation, will be admissible; the cassation remedy will always be admitted for processing. The penalty will be executed after all of the remedies are exhausted. The Congress of the Republic can abolish the death penalty.” 17 Criminal Code, Decree No. 17-73 of the Congress of the Republic of Guatemala, enacted on July 27, 1973 “Article 43. The death penalty is an extraordinary measure that shall only be used in cases expressly designated by law and that shall be carried out only after all legal remedies have been exhausted. The death penalty may not be imposed: 1. For political crimes. 2. When the sentence is based on presumptions. 3. On women. 4. On men over seventy years of age. 5. On those who have been granted extradition on the condition that the death penalty will not be applied. In these cases, and whenever the death penalty has been commuted to a deprivation of liberty, the maximum prison sentence will be imposed.” 18 Criminal Code, Decree No. 17-73, Article 132, supra. 19 Cf. Amnesty International, The Return of the Death Penalty: Guatemala. March of 1997, p. 3 (ESAP evidence file, annex 32, folios 1978 to 1987). 20 Decree No. 234 of the Congress of the Republic of Guatemala, May 21, 1946. 21 Law establishing procedures for execution of the death penalty. Decree No. 100-96 of the Congress of the Republic of Guatemala, November 28, 1996. Article 7 establishes: “After the reading of the orders referred to in the preceding article, the death penalty shall be executed by lethal injection as described below [...]” 22 Code of Criminal Procedure, Decree No. 51-92 of the Congress of the Republic of Guatemala, enacted on December 7, 1992, Article 95. Available in Spanish at: