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.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents