21
(b)
The norm in question was modified in 1994, 1995 and 1996, extending
the death penalty to conducts that constituted kidnapping, and which did not
call for this punishment when the American Convention was ratified. The third
reform, carried out by Legislative Decree No. 81/96, in force in Guatemala
since October 21, 1996, prescribed the death penalty as the only punishment
applicable for the crime of kidnapping in all its forms;
(c)
While the juridical right protected by the penal regime in force in 1973
was the life of the person kidnapped, the violation of which was punishable by
the death penalty, under the 1996 reform, the juridical right protected is the
freedom of the person kidnapped. Consequently, it is not reasonable to
conclude, as did the Guatemalan authorities, that both texts describe the
same category of crime, even though both offenses have the same name;
(d)
The application of the death penalty to Mr. Raxcacó Reyes, for a crime
for which it was not established by law when Guatemala became a party to
the American Convention, constitutes a violation of Article 4(2) of this
instrument, in relation to the general obligation to respect and guarantee
rights established in Article 1(1) thereof.
46.
The Commission also argued that the State’s punitive powers are limited
juridically by the obligations assumed on ratifying international treaties and by the
development of international human rights law. Consequently, the States have a
margin of discretion to determine the severity of the punishment for a specific act. In
this context, with regard to capital punishment, the punishment must be
proportionate to the harm that the criminal act has caused to the victim and to
society. For the crime of simple kidnapping, the punishment of the death penalty is
disproportionate and excessive.
47.
In relation to Article 4(6) of the Convention, the Commission argued that:
(a)
At the end of May 2000, the Guatemalan Congress revoked Legislative
Decree No. 159 of 1892 (the Pardon Law), which established the procedure
for processing petitions for clemency before the President of the Republic.
Accordingly, by abstaining from regulating the procedure for guaranteeing the
access of those sentenced to death to the remedy of pardon or amnesty, as
established in Article 4(6) of the American Convention, the State has
committed a violation that entails international responsibility;
(b)
The right to apply for pardon includes certain minimum procedural
guarantees for those sentenced to death to ensure that this right is respected
and may be enjoyed effectively. These protections include the right of the
condemned man to apply for pardon, to be informed of when the competent
authority will consider his case, to present arguments before the competent
authority, and to receive a decision within a reasonable time before his
execution; and
(c)
With regard to the specific situation of Mr. Raxcacó Reyes, his defense
lawyer could not apply for pardon or commutation of sentence before the
President of the Republic, because the decree regulating this remedy had
been revoked; therefore, it was not possible to file this remedy. The absence
of a law regulating the remedy of pardon denies those sentenced to death, in
this case Mr. Raxcacó Reyes, the right of access to a clemency procedure in
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