decision against the will of the person kidnapped or for any similar or the same purpose. In such cases, no mitigating circumstance shall apply […].32 40. The third amendment of the said article 201 of the Criminal Code was introduced on September 19, 1996, by Legislative Decree No. 81/96, in force in Guatemala from October 21, 1996, to date. This amendment established the death penalty as the sole punishment applicable to the perpetrators or masterminds of the crime of kidnapping: The death penalty shall be imposed on the perpetrators or masterminds of the crime of abduction or kidnapping of one or more persons in order to obtain a ransom, an exchange of persons, or the taking of any decision against the will of the person kidnapped or with any other similar or the same purpose and, when this cannot be imposed, twenty-five to fifty years’ imprisonment shall be imposed. In this case, no mitigating circumstance shall apply. Accomplices or accessories after the fact shall be punished with twenty to forty years’ imprisonment. Those sentenced to imprisonment for the crime of abduction or kidnapping may not be granted a reduction of the punishment for any reason.33 41. On October 31, 2000, the Constitutional Court of the Republic of Guatemala (hereinafter “the Constitutional Court”), acting as a special court of amparo, issued a ruling in which it questioned the expansion of the application of the death penalty for the crime of kidnapping under the last amendment of the Criminal Code. That court considered: […] That the crime punished by the death penalty in article 201 of the Criminal Code before the Pact of San José came into force was a complex crime and its definition included two punishable conducts: (a) the kidnapping of a person, and (b) the death of the victim. That the one crime (kidnapping plus the death of the victim) is a different crime from the other one (simple kidnapping), even though the name has not changed, because the former relates to the protection of the supreme right: to life. In contrast, in the case of the latter, the right protected is individual freedom […]. Article 201 of the Criminal Code in force when the American Convention on Human Rights became legally binding for the State of Guatemala did not include the death penalty for the crime of abduction or kidnapping that was not followed by the death of the victim.34 42. On July 4, 2001, the Constitutional Court changed its opinion in the judgment delivered on the application for amparo filed by Mr. Ruiz Fuentes.35 At that time, the court indicated, inter alia, that “what the legislator has done by the amendments […] is to extend the application of the punishment – in this case, that of death – based on the criterion of the authorship of those who commit the crime of kidnapping, an extension that is not prohibited by the [American] Convention in its Article 4(2) because it relates to the same crime and does not extend the application of this punishment to other crimes for which this punishment was not established at the date the said Convention came into force.”36 43. On October 24, 2017, the Constitutional Court, based, inter alia, on the considerations of the Court in the case of Raxcacó Reyes v. Guatemala,37 declared the said article 201 unconstitutional Legislative Decree No. 14/95 issued by the Congress of the Republic of Guatemala on March 16, 1995. Legislative Decree No. 81/96 issued by the Congress of the Republic of Guatemala on September 19, 1996. 34 Cf. Judgment of the Constitutional Court of the Republic of Guatemala, acting as a special court of amparo, of October 31, 2000, File No. 30-2000 (evidence file, folio 1365). 35 Cf. Application for amparo filed by Hugo Humberto Ruiz Fuentes and J.M.M.R. (evidence file, folios 1339 to 1345), and Judgment of the Constitutional Court of the Republic of Guatemala in File 889-2000 of July 4, 2001 (evidence file, folios 1351 to 1367). See also, Case of Raxcacó Reyes v. Guatemala. Merits, reparations and costs. Judgment of September 15, 2005. Series C No. 133, para. 43.6. 36 Cf. Judgment of the Constitutional Court of the Republic of Guatemala of July 4, 2001, File 889-2000 (evidence file, folio 1365). 37 Cf. Case of Raxcacó Reyes v. Guatemala. Merits, reparations and costs. Judgment of September 15, 2005. Series C No. 133. 32 33 12