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Capital Punishment in Guatemala: The First Steps to Abolition
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In Guatemala, the death penalty is applicable to both common crimes and military offenses. In the case of the former, the existing Criminal Code provides for the death penalty in the case of the following crimes: abduction or kidnapping, murder, forced disappearances, extrajudicial executions, parricide, cases resultant in the deaths of either the President or Vice President, and violations of Article 52 of the Drug Trafficking Act (offenses qualified by outcome), Decree 48-92, which states that if as a result of the offenses under this law one or more persons should die, the death penalty will be applied. For its part, Decree 100-96 “Law establishing the procedure for the execution of the death penalty,” regulates lethal injection as a method of execution of persons convicted of criminal offenses.

In the case of the Military Code, Decree No. 214 of 1878 provides for the death penalty for such crimes as treason, espionage, rebellion and sedition, as well as allowing the option of applying capital punishment to other, unspecified crimes. Executions for military offenses are carried out by firing squads. In the context of the military, it is unknown whether capital punishment has been applied in the case of such offenses.

The Political Constitution of the Republic of Guatemala (CPRG) – established and enforced since 1986 – includes Article 18 which provides the specific kinds of crimes for which the death penalty cannot be imposed. Additionally, it gives the Congress ample opportunity to abolish the death penalty through an ordinary reform, without the need to carry out a constitutional reform, making it clear that the Constitution was drafted in an abolitionist spirit, however restrictive.

Because Guatemala maintains capital punishment legislation, the United Nations still considers it a retentionist state. This is despite the fact that it will soon be 15 years since the country last carried out an execution. The last two executions, carried out by lethal injection, took place on June 29, 2000.

After these last two executions, former President Alfonso Portillo – who from the beginning of his presidency expressed that he did not want to decide on petitions for pardon or clemency – expressed support for the repeal of Decree 159, “Law concerning pardons,” which had been in force since 1892. This motion was itself repealed when Congress passed Decree 32-2000.

These shifting extremes left Guatemala without either a law or administrative body with the power to hear and determine petitions for the pardon or commutation of sentences. Nevertheless, petitions requesting pardons or commutations are still filed at present because both types of petitions are included in the international corpus juris, or “body of law.” Support for these petitions can be found in the American Convention on Human Rights, as well as the International Covenant on Civil and Political Rights. Therefore, because Guatemala is a member state of these international human rights instruments, it is obliged to ensure the consideration of petitions requesting either pardons, appeals for clemency, or commutations of sentences in cases involving the death penalty, before the death penalty can be executed.

But the absence of any official, governmental body with the power to hear and determine appeals is what ultimately prevented death row inmates from accessing and utilizing such international human rights guarantees; as a result, Guatemala maintains only an unofficial moratorium on executions, even though it has not imposed the death penalty in many years. However, in 2008 and 2010 the opposition parties to former President Alvaro Colom congressionally approved two bills that sought to restore authority for hearing and determining petitions for pardon or commutation of death penalty sentences with the President. But these initiatives did not conform with either the judgments or sentencing regulations already laid out by the Inter-American Court of Human Rights, nor did they satisfy international standards. Additionally, these initiatives contained unconstitutional provisions, without ensuring an effective course of appeal for those convicted, since they were actually developed as a mere mechanism to carry out the executions of those sentenced to death.

With these opposing motivations in mind, former President Alvaro Colom vetoed both decrees, thus maintaining and prolonging the absence of any regulation governing the filing and resolution of applications for pardon or the commutation of sentences. In the present, there are still congressional initiatives that aim to again pass a law to return this authority to the President of the Republic; the last one was unfavorably received earlier in February of this year.

Interestingly, this unofficial moratorium on executions resulting from the absence of a statutory law establishing the procedure and the authority to hear and decide appeals for pardon or commutations of sentences, provided an opportunity for the first step towards the progressive abolition of the death penalty in Guatemala.

During these fifteen years comprising Guatemala’s unofficial moratorium, civil society organizations dedicated to human rights, international organizations and the Institute of Public Criminal Defense (a state institution providing free legal defense services in cases involving the death penalty, “IDPP”), all initiated a legal strategy that led firstly to the filing of two complaints to the Inter-American System for the protection of human rights. In 2005, these coordinated efforts resulted in two judgments from the Inter-American Court of Human Rights (IACHR) in the cases of Fermín Ramírez v. Guatemala (2005) and Raxcacó v. Guatemala (2005).

In these aforementioned cases, the IACHR determined the responsibility belonged to the State of Guatemala for having violated several articles of the American Convention on Human Rights (ACHR). In particular, the Court paid special consideration in the case of Fermín Ramírez to the crime of murder, regulated by national legislation in Article 132. The Article provides for a minimum sentence of 25 years and a maximum sentence of 50 years in prison for the crime of murder, but in its last paragraph contains a conditional statement indicating that: “if the convicted is deemed to present an especially dangerous threat to society,” the death penalty shall be imposed instead of the maximum prison sentence. Such a conditional statement permits for the application of the death penalty based solely on the personal opinion and evaluation of the convicted by an individual judge – a determination which is incompatible with any democratic system of law.

Therefore, the IACHR ruled that the State of Guatemala was responsible for the violation of Article 9 of the ACHR, and ordered the reformation of Article 132 (the crime of murder) of the Guatemalan Penal Code, removing the part that refers to an evaluation of “especially dangerous” criteria. Such a reform would consequently result in the repeal of the death penalty for this crime.

In the case of Raxcacó, the Inter-American Court analyzed the reforms made to the offense of kidnapping – contained in Article 201 of the Criminal Code – in 1994, 1995 and 1996; these modifications extending the definition of conduct punishable by the death penalty were not regulated at the time Guatemala ratified the American Convention (ACHR) in 1978. Nevertheless, the last amendment made by Decree 81-96 established the death penalty as the only permissible punishment for the crime, leaving no room for a judge to assess each case individually and decide on the appropriate penalty to be applied in each.

In this regard, the IACHR decided that with the reforms to the crime of kidnapping, the State of Guatemala was responsible for the violation of Article 4.2 of the ACHR, meaning that it had extended the application of the death penalty, since although the state kept the nomen juris, or term of law, of the crime the same, it had actually changed the factual considerations outlined in the Article. Therefore, the Court ordered this legal precept to be changed such that it stipulate clearly the different forms of kidnapping and sequestration, and in no case should extend the death penalty to new cases in contravention of the ACHR.

The issuance of these international sentences was a second step in the fight for the abolition of the death penalty in Guatemala. From this achievement, the Institute of Public Criminal Defense began an initiative to impose review processes in all cases in which the convicted was sentenced to execution for the crimes of kidnapping or murder, successfully replacing the death penalty sentences in those cases with maximum sentences of 50 years in prison. As a result of this change, Guatemala currently does not have anyone awaiting execution. In addition, it is important to note that not a single Guatemalan court has issued new death penalty sentences since 2005.

Therefore, although Guatemala has not made reforms to the crimes of kidnapping and murder, under the prohibitions arising from the judgments of the Inter-American Court, Guatemala nevertheless cannot apply the death penalty for these crimes. However, other crimes are still open to death penalty applications; in the case of such crimes as parricide, extrajudicial execution and various cause-of-death offenses, the conditional and subjective “element of danger” is still considered as reason to apply the death penalty. In the case of crimes like forced disappearance and the Law Against Drug Trafficking from Article 52, such criminal offenses were incorporated into the Penal Code by way of reforms realized after Guatemala had already ratified the ACHR.

These complex interactions with international bodies mean that all types of crimes in Guatemala which provide for the application of the death penalty, in fact, generate violations of the American Convention (ACHR); by their very nature, the death penalty cannot be applied to these crimes. All such crimes must be reformed without the possibility of including the death penalty as a final sentence, which would, in effect, abolish the death penalty for ordinary (“common”) crimes in Guatemala.

Despite this potentiality, there is neither the political will on the part of the Deputies of the Congress of the Republic to reform these criminal offenses, nor is there the will to make use of the authority given by the Constitution to abolish the death penalty. In fact, the issue of capital punishment in Guatemala is currently ripe for widespread discussion because 2015 is an election year. Politicians continue to use the death penalty as a proposed solution for the problematic issues of insecurity and violence in the country – this is particularly evident in the case of a candidate who could be the virtual winner as President of the electoral process.

This means that the issue of the death penalty in Guatemala, although still a subject of legal debate, has also transformed into a subject of political debate; it has come to be used as a political banner wherein the justification for maintaining the death penalty comes from the theory that it works as a general deterrent to crime.

Generating political will is the third step needed in order to achieve the abolition of the death penalty in Guatemala. From my perspective, for this to become a reality, several changes must first occur. First, it is essential to restore citizens’ trust in institutions comprising the legal and security sectors; in order for this to be realized, these institutions must continue to fight against the corruption and impunity which prevails in large proportions in the country. Second, a political change must take place such that the actors who come to hold public office, and especially positions in Congress, are people entrusted to guarantee the rule of law and ensure full respect for human rights.

David Augusto Dávila Navarro is a licensed attorney with a degree in Juridical and Social Sciences, and he is a first-year student at the University of San Carlos in Guatemala (la Universidad de San Carlos de Guatemala) where he is currently pursuing his Masters in International Human Rights; additionally, Mr. Dávila is a professor at the University Mariano Gálvez of Guatemala (la Universidad Mariano Gálvez de Guatemala). He is also the Human Rights Coordinator at the Center for Guatemalan Studies (Centro de Estudios de Guatemala). Mr. Dávila serves as an independent consultant on human rights, international law, justice and secuirty issues, as well as providing support to victims in cases before the Inter-American Court of Human Rights. He has held various positions in organizations dedicated to Guatemalan civil society, working on issues related to the abolition of the death penalty, prevention of torture, detainees and international litigation.

Read more articles about capital punishment around the world in the new issue of International Affairs Forum available here.

 

 

 

 

 

 

 

     

 

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