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accordance with the international obligations assumed by the State in the
sphere of human rights.
Arguments of the representatives
48.
In relation to Article 4(1) of the American Convention, the representatives
argued that:
(a)
The right to life is recognized to be the supreme human right and
although the American Convention does not prohibit the application of the
death penalty, it does tend towards its gradual elimination. In other words,
the death penalty is considered only in the context of truly exceptional
circumstances;
(b)
The State condemned Mr. Raxcacó Reyes to death for the crime of
kidnapping or abduction established in Article 201 of the Penal Code, which
was reformed by Decree No. 81/96, thus mandatorily establishing the death
penalty in all cases of kidnapping or abduction, irrespective of the victims, the
circumstances surrounding the facts and the results. All of this in evident
contradiction of the general obligation concerning the obligations to respect
the right of all persons subject to its jurisdiction and to adopt provisions of
domestic law adapted to the standards established in the American
Convention; and
(c)
By automatically imposing the death penalty, the State disregarded the
fundamental principles of the theory of crime and punishment, which call for
consideration of both the individual circumstances of the person participating
in the crime and the specifics of the crime itself. The mandatory death penalty
violates the understanding that each person is unique and, consequently,
merits individual consideration by the criminal justice system.
49.
Regarding Article 4(2) of the Convention, the representatives indicated that:
(a)
Mr. Raxcacó Reyes was condemned to death as a result of a crime that
was not included in domestic law when Guatemala ratified the American
Convention;
(b)
In 2000, the Constitutional Court of Guatemala delivered a ruling in
which it questioned the expansion of the scope of the death penalty, because
the crime punishable by this penalty under Article 201 of the Penal Code,
before the entry into force of the Pact of San José, was a complex crime that
included two types of punishable conduct: (a) the kidnapping of a person, and
(b) the death of the victim. These are two different types of crimes, even
though the name is the same, because the purpose of the former category is
to protect the juridical right to life while the purpose of the latter category is
to protect the right to individual freedom. There are notorious differences in
the nature of the crime between the original Article 201 and the reformed
Article 201. The original crime category related to a result, and the current
version relates to the mere act; and
(c)
By varying substantially the contents of Article 201 of the Penal Code,
the application of the death penalty was extended to a new crime, violating
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