36 VIII ARTICLES 8 AND 25 OF THE AMERICAN CONVENTION IN CONNECTION WITH ARTICLE 1(1) OF THE SAME (RIGHT TO A FAIR TRIAL AND JUDICIAL PROTECTION) 55. Arguments of the Commission: Regarding the violation of Article 8 of the American Convention a) the right to a due process is fundamental in any Constitutional State, especially when the applicable sanction is the death penalty; b) the right to be heard is an essential guarantee of the defense and the due process; c) the exercise of the defense constitutes a fundamental right and an essential guarantee of people against arbitrary acts and the abuse of power and it includes a series of aspects that allow the classification of “due process” on a procedure through which a person’s right is affected; Regarding the criminal process followed against Mr. Fermín Ramírez d) when the Lower Court issued the order for trial to commence for the crime of aggravated rape against Mr. Fermín Ramírez, the Office of the Public Prosecutor did not request that it be done also for the crime of murder, nor did it present an alternative accusation for the latter crime, even when Article 333 of the Code of Criminal Procedures gave it the opportunity to do so; e) when the debate for the crime of aggravated rape started, the Office of the Public Prosecutor did not extend the indictment to murder, despite the fact that Article 373 of the Code of Criminal Procedures gave it the power to do so; f) the Office of the Public Prosecutor asked for the death penalty for the crime of murder when it presented its closing arguments, that is, when the opportunity to request that the defendant be processed for said crime had already precluded; g) the Criminal, Drug Trafficking, and Environmental Crimes Trial Court of the department of Escuintla, when considering ex officio if there was a possibility to change the legal classification of the crime did not inform Mr. Fermín Ramírez that said change could refer to the crime of murder, which could be punished with the death penalty; h) in the judgment of March 6, 1998 the Court changed the legal classification of the crime and considered as established new facts that had not been charged on Mr. Ramírez up to that procedural moment: that the cause of death of the minor was “asphyxia by strangulation”, and that after the victim had passed away the defendant had carnal access with the corpse, facts that were not considered in the indictment or in the order for trial to commence. The same occurred with a new circumstance that had not been contemplated in the prosecution’s case or in the order for trial to commence,