42
by the representatives, because there is no causal relationship between the
violations that have been declared and the damage invoked.
131. With regard to non-pecuniary damage, the Court recognizes that Mr. Raxcacó
Reyes was subjected to inhuman, cruel and degrading prison conditions, that he was
sentenced to a mandatory death penalty for a crime for which this punishment was
not provided when the State ratified the American Convention, and that he was
deprived of his right to apply for pardon or commutation of sentence, all of which
produced suffering and also physical and psychological consequences (post-traumatic
stress) (supra para. 43(19) to 43(23)). The Court considers that, in the instant case,
it is not pertinent to order the payment of financial compensation for non-pecuniary
damage, bearing in mind that this judgment constitutes, per se, a form of
reparation,77 and that the actions of a public nature or with public effects described
in the following section signify due reparation in the terms of Article 63(1) of the
American Convention.
c) OTHER FORMS OF REPARATION
a)
Adaptation of domestic legislation to the American Convention
132. The Court declares the existence of a violation of Articles 4(1), 4(2) and 4(6)
of the Convention, in relation to Articles 1(1) and 2 thereof. Consequently, it orders
that the State should adopt the legislative, administrative and any other measures
necessary to adapt its domestic legislation to the American Convention; in particular:
(i)
Modification, within a reasonable period, of Article 201 of the Penal
Code in force, in order to define various specific crime categories that
distinguish the different forms of kidnapping or abduction, based on their
characteristics, the gravity of the facts, and the circumstances of the crime,
with the corresponding provision of different punishments, proportionate to
each category, and the empowerment of the courts to individualize
punishments in keeping with the specifics of the crime and the perpetrator,
within the maximum and minimum limits that each crime category should
include. This modification should, under no circumstances, expand the list of
crimes punishable with the death penalty established prior to ratification of
the American Convention. While reforming this Article, the State must abstain
from applying the death penalty and executing those convicted exclusively of
the crime of kidnapping or abduction.
(ii)
Adoption, within a reasonable period, of a procedure that ensures that
any person condemned to death has the right to apply for and, if applicable,
obtain pardon or commutation of sentence, in accordance with a regulation
that establishes the authority empowered to grant this, the presumptions of
admissibility and the respective procedure; in these cases, the sentence must
not be executed while the decision on the pardon or commutation of sentence
applied for is pending.78
b)
Revocation of the death sentence against Mr. Raxcacó Reyes
77
Cf. Case of Acosta Calderón, supra note 1, para. 159; Case of Yatama, supra note 1, para. 260,
and Case of Fermín Ramírez, supra note 1, para. 130.
78
Cf. Case of Fermín Ramírez, supra note 1, para. 130.
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