13
the provisions of these Judgments, other people would be in the paradoxical situation
of being compelling to submit their cases before the Inter-American system.
44.
That this Tribunal deems appropriate to repeat that what is ordered by the
Court in its operative paragraphs of the Judgments provide, in fact, general
guidelines, inasmuch as the origin of this form of reparation was the non-compliance
by the State with Article 2 of the American Convention, by keeping in force those
rules of the Penal Code once Guatemala ratified said treaty. This order of the Court
binds all the state powers and organs.5 In particular, in the case of Fermín Ramírez,
according to the terms of paragraphs 81 and 90 to 98 of the Judgment, the
introduction in the penal text of the dangerousness of the agent as criteria for the
typical classification of facts and the application of certain penalties, is incompatible
with the principle of criminal lawfulness (nullum crimen nulla poena sine lege
praevia) and, therefore, contrary to the Convention. In that way, the so ordered
reparation establishes, on the one hand, the duty of state's organs in charge of
administering penal justice to abstain from applying the part of Section 132 of the
Guatemalan Penal Code as to the dangerousness of the agent to any prosecuted,
accused or convicted person under this criminal type. On the other hand, it spring
from there that the duty of the Guatemalan legislative branch as to the modification
of this provision within a reasonable time, so as to guarantee the respect for the
principle of nullum crimen nulla poena sine lege praevia, eliminating the reference
made to the dangerousness established in such provision. As to the case of Raxcacó
Reyes, this Court has decided that Section 201 of the Guatemalan Penal Code is
contrary to the American Convention and that the State, apart from modifying such
rule under the terms of paragraph 132 of the Judgment, must abstain from applying
it and refrain from executing the people who have been convicted of the crime
classified in said section, as long as those reforms are not made.
45.
That the Court underlines that those States that have ratified the Convention,
in exercise of their sovereign authorities, have acquired the commitment to adapt
their legislation and with that, ensure the application of the rules recognized by the
state itself, by the state’s agents or organs. This state commitment becomes more
evident when the Court itself points out in a specific case that certain rules of the
domestic legislation violate the American Convention and, therefore, orders as a
guarantee of non-repetition the adaptation of the domestic law. The opposite thing
would be translated in a concerning suspension of the conventional rules that would
be inconsistent with the effective enforcement of the human rights and the sovereign
decision of the State to bind itself to comply with the rules of the Convention.
46.
That, in such way, in order to ensure the useful effect of the provisions of the
American Convention and its own effects, according to the obligations contained in
Articles 1(1) and 2 of the Convention, the Court urges the State to adopt the
measures necessary to adapt its domestic rules and, in consequence, requests it that
in the next report refers to the arguments exposed by the representatives (supra
para. 40).
*
*
*
5
See Case of Baena Ricardo et al. v. Panama. Competence, Supra note 2, para. 60; Case of
Gómez Palomino v. Peru; Monitoring Compliance with Judgment, supra note 2; considering clause seven
and Case of García Asto and Ramírez Rojas v. Peru; Monitoring Compliance with Judgment. Order of the
Inter-American Court of Human Rights of July 12, 2007, Considering Clause six.