-10convenient to highlight that the scope of the decision made by the Court in Operative
Paragraph eight of the Judgment is general insofar the source of this type of
reparation is the violation by the State of Article 9 of the Convention in relation to
Article 2 thereof, for having failed to set aside Article 132 of the Criminal Code after
ratification by Guatemala of said treaty. In other words, according to the provisions
of paragraphs 81 and 90 to 98 of the Judgment, the application of the
dangerousness of the agent doctrine to the case and the imposition of certain
punishments should be deemed incompatible with the freedom from Ex Post Facto
Laws and, therefore, contrary to the Convention. Thus, the reparation so ordered
provides, on the one hand, for the obligation of criminal judicial authorities of the
State to refrain from applying Article 132 of the Criminal Code of Guatemala
regarding to the dangerousness of the agent either to Fermín Ramírez or to any
other individual prosecuted, accused or convicted for the same crime.5 On the other
hand, such is the source of the obligation of the Guatemalan legislature to amend
said rule within a reasonable time so that the freedom from Ex Post Facto Laws is
respected by repealing any reference to the dangerousness of the agent. Therefore,
the Court deems it imperative that the State furnish details of the measures adopted
in compliance with the above-mentioned issue and inform whether the domestic
criminal courts still apply said part of the referenced rule.
13.
That, as regards Operative Paragraph ten of the Judgment, which refers to
the duty to implement a procedure that guarantees that whoever is sentenced to the
death penalty will be entitled to request a pardon or commutation of the sentence,
the State informed that “the legal framework of the measure of grace or pardon has
already been addressed" and that the Committee of Legislation and Constitutional
Affairs of the National Congress "issued a supporting report containing amendments
to Bill number 32045, which provides for the approval of the Ley Reguladora del
Recurso de Gracia (Framework Law on the Measure of Grace)." The representatives
ratified said information, but expressed that the bill has technical deficiencies in
contradiction to constitutional principles and that in several cases the sentence was
commuted, but not as a result of a motion for pardon, but through an appeal for
review based on the judgments delivered in the cases of Fermín Ramírez and
Raxcacó Reyes. The Commission expressed its satisfaction with the progress made in
connection therewith and stated that the State should address the alleged
unconstitutionality issue regarding the bill. In this regard, it is worth noting that, in
monitoring compliance with the obligations imposed on the State by the above
mentioned Judgment, the obligation to adopt or amend domestic rules in particular,
it is not incumbent on the Court to determine the compatibility of domestic
legislation, or its amendment, with the Constitution or other domestic legal rules in
force in the particular State, but to control that they are compatible with the
provisions of a Judgment delivered under the American Convention. In the instant
case, the Court expresses its satisfaction with the progress described by the State,
but considers that the State must provide further details. Moreover, the Court wishes
to call to mind that, under the provisions of Operative Paragraph ten, until said
procedure is implemented the State must refrain from executing any person
sentenced to death who has applied for a pardon or sentence commutation.
Similarly, the Court imposed on the State the obligation to amend an Article of the Criminal Code
under Operative Paragraph number six of the Judgment on the merits, reparations and costs in the Case
of Raxcacó-Reyes v. Guatemala as follows: “[w]hile the above mentioned amendments are still pending,
the State must refrain from applying the death penalty and execute convicted prisoners for the crime of
kidnapping and abduction, as set forth in paragraph 132 of the […] Judgment.” Cf. Case of RaxcacóReyes. Judgment of September 15, 2005. Series C No. 133.
5