24.
The State recognized the need to reform article 201 bis of the Criminal Code, which
punishes the crime of torture, because it does not conform to articles 1 and 6 of the IACPPT.
It pointed out that this acknowledgment "was affirmed in the judgment of partial general
unconstitutionality by omission pronounced by the Constitutional Court" on July 17, 2012,
contained in file No. 1822-2011, in which said court declared the unconstitutionality of article
201 bis and the need to modify it by legislative action. It added that in legislation approved
after the Criminal Code has collected the criteria that define the crime of torture according to
international treaties on the matter, such as Decree No. 40-2010 of the Congress of the
Republic "Law of the National Mechanism for the Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment”.
25.
The representatives pointed out that this acknowledgment by the State fully
demonstrates that it has failed to comply with Article 6 of the IACPPT. In addition, they
indicated that the State has not complied with the obligation to ensure that acts of torture are
considered crimes under its criminal law.
26.
The Commission assessed positively the State’s acknowledgment of international
responsibility.
B.2. Considerations of the Court
27.
This Court notes that regarding the State's international acknowledgment of the need
to reform Article 201 bis of the Criminal Code, it has been addressed by Guatemala, for the
first time in the proceedings before this Court, in the answering brief. In their pleadings and
motions brief, the representatives requested that the Court order the State to amend, as a
matter of priority, provisions of the Criminal Code, in particular Article 201 bis of the Criminal
Code. The Commission did not refer to this point in the Merits Report.
28.
Regarding the adaptation of article 201 bis of the Criminal Code to international
standards in relation to the classification of torture, the Court notes that, according to the
representatives, the aforementioned article currently indicates the following:
Anyone who, acting on orders from or with the authorization, support or acquiescence of
the State authorities, intentionally inflicts severe pain or suffering, whether physical or
mental, on a person for the purpose of obtaining from him or from a third person
information or a confession relating to an act which he has committed or is suspected of
having committed or who seeks to intimidate a person or, by so doing, other persons ...
Any person or persons found guilty of the crime of torture shall be liable to between
twenty-five and thirty years’ imprisonment.
29.
The Court warns that, effectively, this provision does not meet the minimum
requirements established in Article 2 of the Inter-American Convention to Prevent and Punish
Torture, which establishes that torture shall be understood as:
[a]ny act intentionally performed whereby physical or mental pain or suffering is inflicted
on a person for purposes of criminal investigation, as a means of intimidation, as
personal punishment, as a preventive measure, as a penalty, or for any other purpose.
Torture shall also be understood to be the use of methods upon a person intended to
obliterate the personality of the victim or to diminish his physical or mental capacities,
even if they do not cause physical pain or mental anguish.
30.
This lack of legislative alignment has also been highlighted by the Constitutional Court
of Guatemala in its judgment of July 17, 2012, in which it expressly stated the following:
[…] in the classification of the crime of torture, contained in article 201 Bis of the Criminal
Code, not all the elements described in the international treaties that regulate this unlawful
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