10 A.3. Amendments to the regulation of the death penalty in Guatemala 35. In 2009, Decree No. 09-2009 was promulgated derogating article 175 of the Criminal Code which established the death penalty in certain cases of rape.23 36. On February 11, 2016, the Constitutional Court of Guatemala declared that the second paragraph of article 132 of the Criminal Code was unconstitutional; this related to considering the dangerousness of the agent as a criterion for applying the death penalty. Moreover, it indicated that this decision had “general” effects.”24 37. In the judgment on merits, reparations and costs in the case of Fermín Ramírez v. Guatemala handed down by the Court on June 20, 2005, this Court determined that “the introduction into the criminal text of the dangerousness of the agent as a criterion for the criminal classification of the acts and the application of certain punishments is not compatible with freedom from ex post facto laws and, therefore, contrary to the Convention. […].” Consequently, it concluded that the State had violated “Article 9 of the Convention, in relation to Article 2 thereof, for having maintained in force the part of article 132 of the Criminal Code that refers to the dangerousness of the agent, once Guatemala had ratified the Convention.”25 38. Subsequently, in the order of the Inter-American Court of February 6, 2019, on monitoring compliance with judgment in the case of Fermín Ramírez v. Guatemala, the Court, referring to the judgment of the Constitutional Court of February 11, 2016, indicated that: It would appear that the said judgment of the Constitutional Court declared the unconstitutionality of the only phrase of article 132 of the Criminal Code that established the possibility of applying the death penalty. It is not clear from the said judgment whether any possibility of applying the death penalty for the crime of murder in Guatemala has been eliminated, or whether it merely eliminated the possibility of applying it based on the dangerousness of the agent. However, based on the representatives’ assertion that a new legislative bill exists that would again apply the death penalty eliminating the phrase concerning the type of crime […], it would appear that it did eliminate the Law against sexual violence and exploitation and trafficking of persons, Decree No. 09-2009 of the Congress of the Republic of Guatemala of March 20, 2009, article 69, Available at: https://www.congreso.gob.gt/detalle_pdf/ Decrees/13124 . Case of Fermín Ramírez v. Guatemala. Monitoring compliance with judgment. Order of the Inter-American 24 Court of Human Rights of February 6, 2019, considering paragraph 10: This court [the Constitutional Court] considers that the word “dangerousness” contained in the contested phrase as a decisive element for the imposition of a punishment is detrimental to the principle of legality, because only those actions classified as a crime or offense and penalized by the law prior to their perpetration are punishable. Given that dangerousness is an endogenous characteristic whose inherent nature prevents determining precisely the right protected that could be harmed, the punishment imposed would be linked to a hypothetical conduct […]. It is even more serious that a psychobiological situation is relevant to impose a punishment of the magnitude of the death penalty, which would merely reflect a significant step backwards in the humanization of the old repressive system, whose rigorous retributive theories saw capital punishment as an absolute solution to the problem of crime […]. The Constitutional Court […] declares: I. Admissible the action of partial general unconstitutionality […] against the penultimate paragraph of article 132 of the Criminal Code, the phrase – “however, the death penalty shall be applied instead of the maximum prison sentence if the circumstances of the act and of the occasion, the way it was carried out and the determinant motives reveal a particular dangerousness of the agent. Those to whom the death penalty is not applied for this crime may not be granted a reduction in the punishment for any reason” – is declared unconstitutional. II. Consequently, it will cease to have effect the day after the publication of this ruling in the Diario de Centro América. 25 Case of Fermín Ramírez v. Guatemala. Merits, reparations and costs. Judgment of June 20, 2005. Series C No. 126, paras. 96 and 98, and Case of Martínez Coronado v. Guatemala. Merits, reparations and costs. Judgment of May 10, 2019. Series C No. 376, para. 31. Regarding the dangerousness of the agent, see also: Case of Raxcacó Reyes v. Guatemala. Merits, reparations and costs. Judgment of September 15, 2005. Series C No. 133, para. 77, and Case of Fermín Ramírez v. Guatemala. Monitoring compliance with judgment, supra, considering paragraph 6. 23