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and that was definitive in the imposition of the sentence, that is: the greater
and specific dangerousness of Mr. Fermín Ramírez. The Trial Court considered
this circumstance as established without any evidentiary foundation or
reasoning. Based on a relationship of the same circumstances used as
aggravating circumstances of the crime, it concluded that Fermín Ramírez
presented a greater dangerousness;
i)
Article 132 of the Code of Criminal Procedures considers a subjective
element that implies the possibility that a person can commit similar acts in
the future. The determination of this circumstance requires a scientific
evaluation, through adequate means of proof. Criminal dangerousness, as
well as any other aggravating or extenuating circumstance, generic or
specific, may not be presumed; instead it must be proven during the trial. By
omitting all reference to the defendant’s dangerousness in the indictment, the
authorities impaired Mr. Fermín Ramírez’s defense counsel from presenting
evidence for the defense, thus violating the principle of rebuttal. The Office of
the Public Prosecutor must have included in the indictment all the elements of
the crime;
j)
the judicial authorities ignored the principle of consistency or
correlation between the indictment and the verdict, and therefore incurred in
a violation of the right to a defense, which Mr. Fermín Ramírez could not
exercise correctly;
k)
the Trial Court issued a conviction without the existence of an act in
which the fact attributed to the defendant was determined with absolute
clarity, despite that established in Article 332 Bis of the Code of Criminal
Procedures, that includes as a substantive requirement of the indictment a
clear, precise, and circumstantiated relationship of the illicit act with which
the defendant is being charged and its legal classification; and of that stated
in Article 388 of the same Code that restricts the verdict to the facts included
in the indictment, which did not happen in this case;
l)
the criminal legislation contemplates mechanisms designed to
guarantee the right to a defense of the accused when from the evidence
produced or from the oral debate new facts or circumstances that were not
mentioned in the indictment are derived, in order to avoid “surprising” the
defendant;
m)
a formal expansion of the indictment, based on Article 373 of the Code
of Criminal Procedures, including a detailed description of the new facts and
circumstances based on which the change of classification and the death
penalty were requested was omitted; the president of the Trial Court
abstained from receiving a new statement from Mr. Fermín Ramírez regarding
the facts that he established as proven in the verdict, and did not expressly
warn the parties of their right to request the suspension of the debate, in
order to have the necessary time and means to prepare their defense;
n)
based on the evidence found in the dossier, the Commission concludes
that the judicial authorities abstained from informing Mr. Fermín Ramírez,
previously and in detail, of the facts and circumstances on which the
conviction was based, thus violating Article 8(2)(b) of the American
Convention. As a consequence of the above, the Commission concludes that
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