13 a) Probative value is granted to the preliminary statement provided by the defendant, Roberto Girón, […], because it constitutes an undue confession accepting facts that prejudice him, such as […] the fact that he was found to be carrying a bloodstained machete; b) Probative value is granted to the preliminary statement provided by Pedro Castillo Mendoza, [which …] constitutes an acceptable confession [in which he] indicates that it was Roberto Girón and not he himself who was carrying the machete; also […], he stated that it was the first time that he had committed a crime and also accepted that he could not remember whose idea it had been to commit the crime under investigation and, in particular, to act in that way, because he accepts facts that prejudice him.38 49. That court concluded that “ROBERTO GIRON, only one last name, and PEDRO CASTILLO MENDOZA, are responsible for the crime of AGGRAVATED RAPE, revealed by their preliminary statements where they accept the facts that prejudice them.” Regarding the punishment, the Court indicated that “our criminal procedural law stipulates that the person who rapes and subsequently kills a person under ten years of age shall be punished with the DEATH PENALTY” and that “the only punishment [for the crime committed] is the penalty indicated in the Criminal Code”39 (capitalized in the original). 50. On being served notice of the judgment, the alleged victims and their representatives filed oral appeals against it. On December 1, 1993, the Twelfth Chamber of the Appellate Court (hereinafter also “the Chamber”) rejected the appeals, agreeing with the opinion of the trial judge as regards the participation of the alleged victims as perpetrators and considering that all the elements that constituted the crime of aggravated rape were present. Furthermore, with regard to the evidence that existed, the Chamber granted this the same evidentiary value, replicating the first instance judgment and substituting it in relation to civil responsibility.40 51. The alleged victims filed cassation appeals against that decision before the Supreme Court of Justice. Pedro Castillo Mendoza’s defense counsel argued that: (i) the Chamber had failed to take into account the attenuating circumstances in favor of the defendant such as his confession in his preliminary statement and the fact that he had no prior criminal record; (ii) the child died due to injuries to the neck and not due to the rape, and his client was not carrying the machete and had not been seen with it, from which it could be construed that it was not his client who killed the victim and that his client only participated in the rape.41 Roberto Girón’s defense counsel argued that the Chamber erred in imposing the death penalty because it did not compare each piece of evidence with all the other evidence and there was no mention of the reasons it might have had to admit or to dismiss the probative elements and to reach conclusions with legal certainty.42 52. On September 27, 1994, the Supreme Court of Justice (hereinafter also “the Supreme Court”) rejected the cassation appeals. The grounds indicated by the Supreme Court were that the appellants had failed to comply with the requirements of the remedy of cassation. The Supreme Court indicated that no hypothesis had been presented, nor had the appeal cited articles of law that might have been infringed in the second instance judgment. Regarding legal error in the assessment of the evidence, it indicated that the appeal had not cited articles of law covering the rules for the assessment of evidence that had been violated in relation to Judgment of the First Criminal Trial Court of Escuintla of October 4, 1993 (evidence file, annexes to the Merits Report, annex 9, fs. 45 to 57). 39 Judgment of the First Criminal Trial Court of Escuintla, supra. 40 Cf. Judgment of the Twelfth Chamber of the Appellate Court of Guatemala rejecting the appeal on December 1, 1993 (evidence file, annexes to the answering brief, fs. 2492 to 2500). 41 Cf. Brief of Edy Iván Bocanegra Conde indicating the grounds for the cassation appeal filed on March 17, 1994 (evidence file, annexes to the Merits Report, annex 10, fs. 59 to 63). 42 Cf. Brief of LCC indicating the grounds for the cassation appeal filed on February 25, 1994 (evidence file, annexes to the Merits Report, annex 11, fs. 65 to 74). 38