between simple kidnapping and kidnapping aggravated by the victim’s death. In the former, the punishment of deprivation of liberty was applied; in the latter, the death penalty.103 86. The Court also notes that article 201 of Legislative Decree No. 81/96, which was applied in the sentencing of Mr. Ruiz Fuentes, defines a single conduct at the time the crime was committed: the abduction or detention of a person for a specific purpose. The act of killing the person is not included in the definition of this crime, which protects individual freedom, not life, and provides for the imposition of the death penalty on the kidnapper. Although the nomen iuris of kidnapping or abduction remained unaltered from the time Guatemala ratified the Convention, the factual assumptions contained in the corresponding crime definitions changed substantially, until it made it possible to apply the death penalty for actions that were not punishable by this sanction previously. This involved the violation of Article 4(2) of the American Convention, because if a different interpretation were accepted, this would allow a crime to be substituted or altered with the inclusion of new factual assumptions, despite the express prohibition to extend the death penalty contained in Article 4(2).104 This has been corroborated by the Constitutional Court of Guatemala which, on October 24, 2017, handed down a judgment in which, inter alia, it declared the said article 201 unconstitutional, considering that it signified an evident violation of Article 4(2) of the American Convention on Human Rights.105 b.1.2) Mandatory and automatic imposition of the death penalty 87. The Court also notes that, in the Guatemalan Criminal Code, the provisions concerning the crime of abduction or kidnapping require the application of the death penalty automatically and in general to the perpetrators of this unlawful act. In this regard, it is pertinent to recall that the United Nations Human Rights Committee has considered that the “system of mandatory capital punishment would deprive the accused of his right to life without considering whether, in the particular circumstances of the case, this exceptional form of punishment is compatible with the provisions of the International Covenant on Civil and Political Rights.”106 88. As in the case of Raxcacó Reyes v. Guatemala, the Court notes that, as it was written, the said article 201 of the Criminal Code had the effect of subjecting those accused of the crime of abduction or kidnapping to criminal proceedings in which the particular circumstances of the crime and of the accused, such as the criminal record of the accused and of the victim, the motive, the extent and intensity of the harm caused, the possible mitigating or aggravating circumstances, were not considered – by any court. The Court concludes that, when certain laws make it mandatory to impose the death penalty automatically, this does not permit distinctions to be made between degrees of seriousness and individual circumstances of the particular crime for which the penalty is imposed, which is incompatible with the limitation of capital punishment to the most serious crimes, as established in Article 4(2) of the Convention.107 89. Based on the foregoing, the Court concludes that the application of article 201 of the 103 Cf. Case of Raxcacó Reyes v. Guatemala, supra, para. 64. Cf. Case of Raxcacó Reyes v. Guatemala, supra, paras. 65 and 66. 105 Cf. Judgment of the Constitutional Court of the Republic of Guatemala, of October 24, 2018, File 5986-2016. 106 Cf. UN, Human Rights Committee, Kennedy v. Trinidad and Tobago (Communication No. 845/1999), UN Doc. CCPR/C/74/D/845/1998 of March 28, 2002, para. 7.3; UN, Human Rights Committee, Thompson v. Saint Vincent and the Grenadines (Communication No. 806/1998), UN Doc. CCPR/C/70/D/806/1998 of December 5, 2000, para. 8.2; UN, Human Rights Committee, Pagdayawon Rolando v. The Philippines (Communication 1110/2002), UN Doc. CCPR/C/82/D/1110/2002, para. 5.2. 107 Cf. Case of Boyce et al. v. Barbados. Preliminary objection, merits, reparations and costs. Judgment of November 20, 2007. Series C No. 16, paras. 54 and 55 and 108. See also, United Nations, Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and of the SecretaryGeneral, of September 14, 2018, A/HRC/39/19, para. 24, and United Nations, Economic and Social Council, Report of the Secretary-General, “Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty,” E/2015/49, para. 63. 104 22