17 68. Article 175 of the Criminal Code in force in 1993 defined the crime of aggravated rape (supra para. 29), although this article was amended in May 1996 (supra para. 30) and subsequently abrogated (supra para. 35) by the time the judgment convicting the alleged victims was delivered. 69. In the judgment of October 4, 1993, the Criminal Trial Court of Escuintla (supra para. 48), established the following: […] As has been proven in these proceedings, the defendants, ROBERTO GIRON, only one last name, and PEDRO CASTILLO MENDOZA, are responsible for the crime of which they are accused of AGGRAVATED RAPE, pursuant to article 175 of the Criminal Code in force […]. As the criminal responsibility of the defendants, ROBERTO GIRON, only one last name, and PEDRO CASTILLO MENDOZA has been established in these proceedings, pursuant to the law, the court must sentence them to the DEATH PENALTY. In current legal doctrine concerning this punishment, some are in disagreement with its application and even though the court advocates the non-application of this punishment, without entering into details, it must and has to respect the law to which it is subject and, for that reason, the aforementioned defendants are sentenced to the indicated death penalty […]. THEREFORE: This court […] DECLARES that: (I) the defendants ROBERTO GIRON, only one last name, and PEDRO CASTILLO MENDOZA, are responsible for the crime of AGGRAVATED RAPE, and based on this crime, criminal law imposes the DEATH PENALTY on each of them. 70. This Court notes that, in the Trial Court’s judgment, the court imposed the death penalty because it was the mandatory punishment established in article 175 of the Criminal Code without taking into consideration any attenuating or aggravating circumstances. The Court recalls its considerations in the case of Raxcacó Reyes v. Guatemala,53 referring to the United Nations Human Rights Committee, which considered “that the mandatory nature of the capital punishment under which the author was deprived of his right to life, prevented considering whether, in the specific circumstances of the case, this exceptional form of punishment was compatible with the provisions of the International Covenant on Civil and Political Rights,” and also the Court’s considerations in the case of Hilaire, Constantine and Benjamín et al. v. Trinidad and Tobago54 regarding how the defendants were treated in application of the mandatory death penalty. 71. Article 175 of the Criminal Code, as it was drafted (supra para. 29), did not establish the application of any punishment other than the death penalty for the perpetration of the crime of aggravated rape in cases in which the victim was under ten years of age. The said article does not permit an assessment of the specific characteristics of the crime, nor the level of participation and culpability of the accused, circumstances that could attenuate the sentence imposed. The regulation of this crime automatically ordered the application of the death penalty to the perpetrators. 72. In view of the fact that the death penalty to which Roberto Girón and Pedro Castillo Mendoza were sentenced was based on the application of the punishment imposed by article 175 of the Criminal Code, in force at the time of the judgment, the Court considers that the State violated the prohibition of the arbitrary deprivation of life established in Article 4(1) and 4(2) of the American Convention, in relation to Articles 1(1) and 2 of the Convention, to the detriment of Messrs. Girón and Castillo. 73. Furthermore, the representatives argued that Roberto Girón and Pedro Castillo Mendoza presented a request for clemency on July 12, 1996, based on article 78 of the Cf. Case of Raxcacó Reyes v. Guatemala. Merits, reparations and costs, supra, para. 79. Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs. Judgment of June 21, 2002. Series C No. 94, paras. 103 to 109. 53 54