51 In a democratic system it is necessary to maximize the precautions in order for criminal sanctions to be adopted with strict respect for the basic rights of people and with a prior careful verification of the effective existence of the illicit act. In this sense, the criminal judge must, when applying the criminal law, strictly abide to that stated in it and observe great thoroughness in the adjustment of the accused person’s behavior to the elements of the crime, in such a way that acts not punished by the legal system are not penalized.91 91. Article 132 of the Guatemalan Criminal Code defines the crime of murder and establishes as the applicable sanction to its author his imprisonment during 25 to 50 years or the death penalty (supra para. 54(15)). 92. From the second to last paragraph of this provision the possibility that the judge convict the defendant to one or the other punishment based on a judgment of dangerousness of the agent is deduced, since it states that the death penalty will be applied instead of the maximum prison sentence “if a greater dangerousness of the agent is revealed,” which will be determined according to “the circumstances of the act and the occasion, the way in which it was carried out and the determining motives.” Based on the above, the consideration of dangerousness becomes the element on which the application of the maximum punishment depends. 93. If the dangerousness of the agent implies a criminal consequence of such serious nature, as occurs in the case of Murder, pursuant to the Guatemalan law, the personal circumstances of the agent must be part of the indictment, they must be proven during the trial, and analyzed in the judgment. However, the circumstances that would prove the dangerousness of Mr. Fermín Ramírez were not object of the indictment made by the Office of the Public Prosecutor. This lead the Inter-American Commission to consider that the Trial Court incurred in another inconsistency when it considered them proven without their inclusion in the indictment, which implies a violation to Article 8 of the Convention (supra paras. 55(h) through 55(n), 81, and 89). 94. In the opinion of this Court, the problem presented by the citing of the dangerousness cannot only be analyzed in light of the guarantees of the due process, within Article 8 of the Convention. This citing has a greater scope and seriousness. In effect, it clearly constitutes an expression of the exercise of the state’s ius puniendi over the basis of the personal characteristics of the agent and not the act committed, that is, it substitutes the Criminal System based on the crime committed, proper of the criminal system of a democratic society, for a Criminal System based on the situation of the perpetrator, which opens the door to authoritarianism precisely in a subject in which the juridical rights of greatest hierarchy are at stake. 95. The assessment of the agent’s dangerousness implies the judge’s appreciation with regard to the possibility that the defendant will commit criminal acts in the future, that is, it adds to the accusation for the acts committed, the prediction of future acts that will probably occur. The State’s criminal function is based on this principle. In the end, the individual will be punished – even with the death penalty – not based on what he has done, but on what he is. It is not even necessary to weigh in the implications, which are evident, of this return to the past, absolutely 91 Cfr. Case of Lori Berenson, supra note 3, paras. 79-82; Case of De la Cruz Flores. Judgment of November 18, 2004. Series C No. 115, paras. 79-82; and Case of Ricardo Canese. Judgment of August 31, 2004. Series C No. 111, paras. 174-177.