52
unacceptable from the point of view of human rights. The prediction will be made, in
the best of cases, based on the diagnosis offered by a psychological o psychiatric
expert assessment of the defendant.
96.
Therefore, the introduction in the criminal text of the dangerousness of the
agent as a criterion for the criminal classification of the acts and the application of
certain sanctions is not compatible with the freedom from ex post facto law and,
therefore, contrary to the Convention.
97.
Article 2 of the Convention states the duty the States Parties to the
Convention have to adjust their internal legislation to the obligations derived from
the Convention. In this sense, the Court has stated that:
[i]f the States, pursuant to Article 2 of the American Convention, have a positive
obligation to adopt the legislative measures necessary to guarantee the exercise of the
rights recognised in the Convention, it follows, then, that they also must refrain both
from promulgating laws that disregard or impede the free exercise of these rights, and
from suppressing or modifying the existing laws protecting them. These acts would
likewise constitute a violation of Article 2 of the Convention.92
98.
Based on all the above, the Court considers that the State has violated Article
9 of the Convention, in relation to Article 2 of the same, for having maintained in
force the part of Article 132 of the Criminal Code that refers to the dangerousness of
the agent, once the Convention was ratified by Guatemala.
X
ARTICLE 4 OF THE AMERICAN CONVENTION
IN RELATION TO ARTICLES 1(1) AND 2 OF THE SAME
(RIGHT TO LIFE)
99.
Arguments of the Commission:
the State violated the right enshrined in Article 4 of the American Convention
in relation with Article 1(1) of the same, with the conviction and possible
execution of the death penalty imposed upon Mr. Fermín Ramírez in a
criminal process in which the rights to a due process of law and an effective
legal protection were violated;
100.
Arguments of the representatives:
a)
the State violated the right enshrined in Article 4 of the Convention in
relation with Article 1(1) of the same with the possible execution of the death
penalty imposed upon Mr. Fermín Ramírez;
b)
at the time at which the request for the commutation of the sentence of
Mr. Fermín Ramírez was decided on there was not in Guatemala regulation of
pardon, reason for which both the procedure and the decision were arbitrary.
The pardon process of Mr. Fermín Ramírez was carried out without legal
formalities, without a hearing or the participation of the alleged victim. The
92
Cfr. Case of Caesar, supra note 3, para. 91; and Case of Hilaire, Constantine, and Benjamin et
al., supra note 86, para. 113.
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