RAMÍREZ AND/OR FERMÍN RAMÍREZ ORDOÑEZ
On June 9, 2000 the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission,” “the Commission,”
or “the IACHR”) received a complaint submitted by the Public
Criminal Defense Institute (IDPP) (hereinafter “the petitioners”),
on behalf of Mr. Fermín Ramírez or Fermín Ramírez Ordoñez
(hereinafter “the alleged victim”), against the Republic of
Guatemala (hereinafter “the State,” “the Government,” or
“Guatemala”). The petition addresses the death sentence handed down
to Mr. Fermín Ramírez on March 6, 1998 by the Sentencing Court for
Criminal, Drug, and Environmental Offenses in Escuintla department,
after the defendant was found guilty of the crime of murdering the minor
child Grindi Yasmín Franco Torres. On that same occasion, the
petitioners asked the Commission to grant precautionary measures to
protect the alleged victim.
The petitioners maintain that the State is responsible for
violating the right to life, the right to a fair trial, and the right to
judicial protection contained in Articles 4, 8, and 25 of the American
Convention on Human Rights (hereinafter “the American Convention”)
with respect to Fermín Ramírez, along with its general obligation of
respecting and ensuring the rights enshrined in the Convention.
The State, in turn, holds that the trial that imposed the capital
sentence on the alleged victim was conducted within the strict framework
of Guatemalan law and that in addition, the alleged victim had access to
all the means of defense necessary to challenge the unfavorable court
rulings. It therefore asks the Commission to rule the petitioners’
Based on its analysis of the parties’ positions, the Commission
concludes that it is competent to hear this claim and that the petition
is admissible under the provisions of Articles 46 and 47 of the American
PROCESSING BY THE COMMISSION
The petition was lodged with the Commission on June 9, 2000. On
that same occasion, the petitioners also requested precautionary
measures on behalf of the alleged victim. On June 27, the petitioners
once again contacted the IACHR, requesting that it ask the
Inter-American Court of Human Rights to adopt provisional measures on
the convicted man’s behalf. In consideration of that request, the
IACHR forwarded the relevant documents to the Guatemalan State on June
19, 2000, and asked it to submit information regarding the precautionary
measures sought within the following seven days. Shortly after, on June
21, 2000, the State told the IACHR that its request would be satisfied
as soon as possible by the competent courts of law, to which the case
file had already been forwarded.
In a communication
dated August 11, 2000 the State informed the Commission that this case
entailed no violations of rights enshrined in the Convention and that,
in addition, the fact that the domestic remedies available to Mr. Ramírez
had not been exhausted further disqualified the IACHR from granting any
kind of precautionary measures for the alleged victim or from asking the
Inter-American Court of Human Rights to extend provisional measures on
On December 7, 2000 the petitioners again requested the
Commission to grant precautionary measures on behalf of the alleged
victim; this was because all the ordinary remedies offered by domestic
law had been exhausted and the authorities were close to setting a date
for the execution.
On May 3, 2001 the Commission began processing the petition; it
forwarded the relevant parts of the complaint to the Guatemalan State
and, pursuant to Article 30 of its Rules of Procedure, asked it to
submit its response within a period of two months. The State sent its
comments on July 11, 2001, asking the IACHR to declare the case
inadmissible and to refrain from extending precautionary measures on Mr.
9. On October 3,
2001 the Commission forwarded the relevant parts of the State’s reply
to the petitioners and asked them to submit their comments within the
following 30 days. On November 12, the petitioners presented their
comments on the Government’s report, in which they once again asked
the Commission to adopt precautionary measures and to continue with its
processing of this case.
Finally, the petitioners submitted a new report, elaborating on
the comments made on November 12, 2001.
III. POSITIONS OF
The petitioners maintain that the death sentence handed down to
Mr. Fermín Ramírez at a trial that failed to respect several of the
minimum guarantees enshrined in Article 8; as a result, in the
petitioners’ opinion, the imposition of the sentence violates Article
4 of the American Convention.
First of all, the petitioners told the IACHR that in this case,
the Guatemalan public prosecution service (MP) initially charged the
accused with the crime of aggravated rape, to which, under that
country’s criminal law, the death penalty does not apply if the victim
is at least 10 years of age.
The petitioners claim that the trial commencement papers also cited the
charge of aggravated rape and that the entire proceedings were conducted
with respect to that crime. They note that irrespective of this, in its
judgment the court classified the incident as murder and, in light of
the “dangerous nature” of the alleged victim, handed down the
maximum sentence. The petitioners report that during the hearings phase,
the court told the parties about a possible change in the legal
classification of the incident, under a legal mechanism provided for by
Guatemala’s criminal procedure,
and that the public prosecution service, in its final conclusions,
sought to have the crime legally classified as murder.
The petitioners thus claim that the judgment changed the facts on
which the indictment and the hearings were based and that the accused
was not given the opportunity to be heard with respect to the new
charges, to present evidence relating to the crime of murder, or to
challenge, in any practical or effective manner, the accusations that
led him to be classified as “dangerous.” They maintain that it was
the defenselessness to which the alleged victim was subjected that gave
rise to the radical infringement of the minimum guarantees due to all
persons tried in criminal proceedings, particularly when the trial
culminates with a capital sentence.
Secondly, the petitioners claim that the defendant was not given
timely notice of his classification as dangerous, since neither the
indictment, the trial commencement papers, nor the hearings referred to
that determination which, in accordance with Guatemalan criminal law,
represents the only circumstance under which the death penalty can be
applied to the crime of murder. They point out that in order to hand
down a death sentence, the defendant’s dangerousness must be proven,
and that at no point in Mr. Ramirez’s trial did the public prosecution
service make any charges regarding his dangerousness; moreover, argue
the petitioners, the court was not qualified to uphold such
allegations–its authority for determining the facts was limited to the
charges in the indictment as heard by the defense, and so, the
petitioners claim, the defense was unable to plan or carry out a
strategy to refute those allegations of dangerousness.
The petitioners also allege a violation of the presumption of
innocence which, in cases involving the death penalty, means that
capital sentences cannot be handed down on the basis of assumptions that
admit the possibility of a different interpretation of the facts. In the
case at hand, they claim, the first-instance court did not address the
facts on the basis of which it upheld the aggravating circumstances and,
instead, merely referred to them as being involved. The petitioners also
claim that the failure of the first-instance judgment to address the
facts underlying most of the aggravating circumstances identified by the
court, together with its failure to ground those circumstances in
accordance with the principles of sound and critical reasoning,
effectively restricted the defense’s ability to challenge relevant
matters of law related to the aggravating circumstances in the special
appeal and annulment remedies filed in the subsequent instances.
Finally, the petitioners report that the remedies pursued to
appeal against the first-instance judgment invoked the incorrect
classification of the crime and the inclusion of aggravating
circumstances, but given the structure of legal proceedings in
Guatemala, whereby questions of fact can only be discussed in the first
instance, the challenges were restricted exclusively to matters of law
and ignored the questions of fact on which the aggravating circumstances
were based. Ultimately, this meant that the alleged victim did not enjoy
the right of judicial protection.
The petitioners hold that the State of Guatemala violated the
provisions of Article 4 of the Convention by failing to observe the due
judicial guarantees that, in cases involving the death penalty, must be
upheld with much greater zeal. They refer both to the jurisprudence of
the Inter-American Court of Human Rights and to the opinion of the Human
on the compulsory observance of the guarantees of due process in cases
in which capital punishment is a possibility in order to prevent the
death sentence from being handed down on an arbitrary basis.
the Exhaustion of Domestic Remedies
The petitioners report that the judgment of March 6, 1998, that
handed down Mr. Fermín Ramirez’s death sentence was challenged by
means of an appeal, which was dismissed by the Guatemalan Court of
Appeals in a ruling dated May 27, 1998; that the defense filed an appeal
for annulment against that ruling, which was dismissed by the Supreme
Court of Justice on August 17, 1998; that the defense later lodged an amparo
constitutional relief suit with the Constitutional Court, which was
dismissed on February 18, 1999; and that it finally filed a review
remedy with the Supreme Court of Justice, which was dismissed on July
12, 1999. They also report that on July 27, 1999, an appeal for clemency
was lodged with the President of the Republic, and that this request was
rejected on May 31, 2000.
In its response, the Government of Guatemala stated that it would
not address all the points related to the right of defense invoked by
the petitioners in their complaint because, in its view, that would mean
discussing the interpretation and enforcement of domestic legal
precepts, which would clearly imply the creation of a fourth instance,
the weakening of Guatemalan institutions, and the reexamination of an
issue that has already gone through all the stages and proceedings set
by the Code of Criminal Procedure (hereinafter “the CCP”) and other
The State maintains that in the case at hand, the change in the
legal classification of the crime made by the first-instance court upon
handing down its judgment did not undermine Mr. Ramirez’s right of
defense since it took place in strict compliance with the judicial
guarantees implicit in due process. Thus, the State argues that the
defendant was remanded in custody for the crimes of murder and
aggravated rape and that, as recognized by the petitioners, his defense
team was informed at trial of a possible change in the legal
classification–a situation that is explicitly provided for in the CCP–and
that later, in the final conclusions, the change was also requested by
the public prosecution service.
The State further argues that the Sentencing Court merely
assessed the evidence in the case file, which does not indicate that the
child’s death was caused by the rape or by secondary circumstances
related thereto; on the contrary, it maintains that in this case, it was
clearly shown and proven, in the forensic report presented at trial,
that the cause of death was asphyxia through strangulation. The State
adds that this case involves the doctrine known as the “real or
material combination of crimes” in that the defendant, according to
the trial documents, performed two actions: that of “killing” the
girl and that of “raping” her. These two actions constitute separate
crimes, and the Sentencing Court ruled that the action of killing the
girl, with the applicable aggravating circumstances, led to the
activation of the legal provision that governs the taking of a life. For
that reason the State believes that the alteration of the facts that the
petitioners allege–and that, according to the petitioners’
arguments, led to the violation of the defendant’s rights–did not in
fact take place; the State also maintains that even if those arguments
were true, all the necessary means for presenting a defense were
available to the defendant.
Regarding the petitioners’ claims that the presumption of
innocence was violated, the State holds that if a conviction was handed
down in this case it was because it was duly proven that Mr. Ramírez
perpetrated a crime that the courts classified as murder. In addition,
the Government points out that the Sentencing Court is not required to
state the grounds for all the aggravating circumstances, since even if
only one is involved, and in consideration of the nature and
circumstances of the crime, it is empowered to impose the penalty.
Finally, it notes that the Court did rule the following aggravating
circumstances as being present: treachery, notorious premeditation,
abuse of superiority, remote location, and contempt toward the victim.
As regards the right to judicial protection, the State claims
that from the remedies and suits exhausted by the petitioners it can be
concluded that Mr. Ramírez was given suitable legal means for taking
the case against him to the higher courts and that none of those
remedies found any evidence of such a violation.
For the reasons given above, the State holds that there were no
violations of due process, the right to a fair trial, or the judicial
guarantees enshrined in the Convention as a result of which it could be
ruled responsible for violating Mr. Ramirez’s right to life.
The Commission will now analyze the admissibility requirements
set forth in the American Convention.
A. Competence of
The Commission has competence ratione
materiae to hear this petition since it alleges violations of rights
protected by the American Convention, to which the State of Guatemala is
a party by reason of having ratified it on May 25, 1978.
The Commission has competence ratione
personae to hear this petition since the identities of both the
petitioners and the alleged victim satisfy the requirements set forth,
respectively, in Articles 44 and 1(2) of the Convention.
The IACHR has competence ratione
temporis to hear this petition since the obligation of respecting
and ensuring the rights protected by the American Convention was already
in force for the Guatemalan State on the date on which the alleged
Finally, the Commission has competence ratione
loci to hear this petition since it alleges violations of rights
within the territory of the respondent state party.
Requirements of the Petition
1. Exhaustion of
Article 46(1)(a) of the American Convention stipulates that the
admissibility of a petition depends directly on the remedies offered by
domestic jurisdiction having been “pursued and exhausted in accordance
with generally recognized principles of international law.”
Both the Inter-American Court of Human Rights (hereinafter “the
Court”) and the Commission have, on repeated occasions, maintained
that: “Under the generally recognized principles of international law
and international practice, the rule which requires the prior exhaustion
of domestic remedies is designed for the benefit of the State, for that
rule seeks to excuse the State from having to respond to charges before
an international body for acts imputed to it before it has had the
opportunity to remedy them by internal means.”
In this regard, in its first communication of August 11, 2000 the
State of Guatemala stated that the failure to exhaust domestic remedies
disqualified the Commission from studying the merits of the case.
However, in its last communication, dated July 10, 2001 the State
claimed that the defendant had been given all procedural remedies for
attacking the guilty verdict and although they were exhausted, within a
framework of due process, none found that the Sentencing Court had
failed to observe judicial guarantees.
The Commission has received information from both parties
regarding the remedies exhausted by the petitioner. First of all, the
first-instance judgment was challenged by means of a special appeal
remedy, which was dismissed on May 27, 1998; then, an appeal for
annulment was lodged, which was also dismissed on August 17 of that
year. An amparo suit lodged
with the Constitutional Court was dismissed on February 18, 1999. Later,
a review remedy was filed with the Criminal Chamber of the Supreme Court
of Justice, which dismissed it on July 12, 1999. Against that decision a
suit for amparo relief was
lodged with the Constitutional Court. Finally, following the dismissal
of that amparo suit, the
defense lodged an appeal for clemency and motion for nonexecution of
sentence under the provision of the Guatemalan Constitution whereby the
death sentence cannot be carried out while any remedy is still
outstanding: the outstanding remedy in this case, said the petitioners,
was the international proceeding being pursued before the Commission.
From the information provided by the parties as of the drafting
of this report, the Commission sees that the petitioner has invoked all
the ordinary and special remedies that Guatemalan law offers for
challenging the sentence that imposed the death penalty on him and, as
result, that the requirement set by the Convention has been satisfied.
In addition, the IACHR notes that when the State claimed that there were
still domestic remedies that had not been exhausted, it failed to
identify them or to demonstrate their effectiveness;
however, that is now irrelevant since, in its last submission, the State
claims that the alleged victim did make use of all the remedies offered
by Guatemalan law to defend his rights.
2. Timeliness of
Article 46(1)(b) of the American Convention rules that for a
petition or communication to be admitted by the Commission, it must be
lodged within a period of six months from the date on which the alleged
victim of a rights violation was notified of the final judgment.
With respect to the remedies that must be pursued and exhausted
in order to comply with the requirement contained in Article 46(1)(b) of
the Convention, the Inter-American Court of Human Rights has said that
they must be adequate, meaning that the function of those remedies
within the domestic legal system “must be suitable to address an
infringement of a legal right.”
Thus, the IACHR notes that the petition was received by the
Commission on August 14, 1996. According to the information furnished,
Mr. Fermín Ramirez’s defense team lodged the appeal for clemency with
the President of the Republic of Guatemala on July 27, 1999. This appeal
was denied on May 31, 2000, in a Government Agreement dated May 31,
2000. Consequently, the IACHR believes that the requirement set forth in
Article 46(1)(b) of the American Convention has been satisfied.
3. Duplication of
Proceedings and Res Judicata
The petition dossier contains no information to indicate that
this matter is pending in any other international settlement proceeding
or has been previously examined by the Inter-American Commission on
Human Rights. The IACHR therefore concludes that the requirement
contained in Article 46(1)(c) of the American Convention has been met.
of the Alleged Facts
The State claims that the proceedings that handed down the death
penalty to the alleged victim entailed no violations of the right to a
fair trial or the judicial guarantees enshrined in the American
The Commission has previously stated that this stage in the
proceedings is not intended to establish whether or not a violation of
the American Convention was committed. At the admissibility
stage, the IACHR must decide whether the stated facts tend to establish
a violation, as stipulated in Article 47(b) of the American Convention,
and whether the petition is “manifestly groundless” or “obviously
out of order,” as stated in section (c) of that same article. The
level of conviction regarding those standards is different from that
which applies in deciding on the merits of a complaint. The IACHR must
conduct a prima facie
assessment to examine whether the complaint entails an apparent or
potential violation of a right protected by the Convention and not to
establish the existence of such a violation. That examination is a
summary analysis that does not imply prejudging the merits or offering
an advance opinion on them. Thus,
the Commission’s Rules of Procedure, by setting two clearly separate
phases for admissibility and for merits, reflects the distinction
between the evaluation that the IACHR must conduct to declare a petition
admissible and the assessment necessary to establish a violation.
The Commission believes that the petitioners’ allegations
could, prima facie, tend to
establish a violation of the right to life, to a fair trial, and to
judicial protection contained in Articles 4, 8, and 25 of the American
Convention, in conjunction with State’s general obligation of
respecting and ensuring those rights set forth in Article 1(1) thereof.
Consequently, the Commission concludes that the instant petition meets
the requirements set forth in sections (b) and (c) of Article 47.
The Commission concludes that it is competent to examine this
matter and that under Articles 46 and 47 of the American Convention, the
petition is admissible with respect to Articles 1(1), 4, 8, and 25 of
that instrument. Based on the foregoing considerations of fact and law,
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the potential
violation of Articles 1(1), 4, 8, and 25 of the American Convention on
To give notice of this decision to the parties.
To continue with its analysis of the merits of the complaint.
To publish this decision and to include it in its Annual Report
to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the 9th day of October 2002.
(Signed): Juan Méndez, President; José Zalaquett, Second
Vice-President; Robert K. Goldman, Julio Prado Vallejo, Clare K.
Roberts, and Susana Villarán, Commissioners.
 Commissioner Marta Altolaguirre, a Guatemalan national, did not participate in discussing and deciding on this case in accordance with Article 17(2)(a) of the Commission’s new Rules of Procedure, which came into force on May 1, 2001.
Article 175 of Guatemala’s Criminal Code states that:
Should the victim die by reason of or as a result of the rape, a prison term of between 30 and 50 years shall be imposed. The death penalty shall apply if the victim was aged under ten years.
Article 388 of the Code of Criminal Procedure states that:
The judgment may not uphold facts or circumstances other than those described in the indictment and the trial commencement papers or, when applicable, in the expanded indictment, except when favorable to the accused.
In the judgment, the court may give the facts a different legal classification from the one given in the indictment or the trial commencement papers, or it may impose punishments more or less severe than the ones sought by the public prosecution service.”
Article 132 of the Criminal Code stipulates that:
Murder is committed by a person who kills another:
For a price, reward, promise, or in pursuit of financial gain.
By means of or during a flood, fire, poisoning, explosion,
demolition or collapse of a building, or other contrivance capable
of causing great devastation.
With notorious premeditation.
With brutal perversity.
To prepare, facilitate, consummate, or conceal another crime, or to
ensure the results thereof or immunity for self or accomplices, or
because the other punishable act did not secure the result sought.
For purposes of terrorism or in the pursuit of terrorist activities.
convicted of murder shall receive prison terms of between 25 and 50
years. However, the death penalty shall apply instead of the maximum
prison term if the circumstances of the incident, the timing
thereof, the way in which it was carried out, and the motivation
behind it reveal a particularly higher level of dangerousness on the
part of the perpetrator. Those not sentenced to death for this crime
shall not be eligible for reductions in their sentence for any
 Human Rights Committee, General Comment 6, Article 6 (sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994).
 Ibid., footnote Nº 4.
See: Inter-Am.Ct.H.R., Exceptions to the Exhaustion of Domestic
Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American
Convention on Human Rights), Advisory Opinion OC-11/90,
August 10, 1990, Ser. A No. 11, paragraph 17.
Inter-Am.Ct.H.R., Resolution in the Matter of Viviana Gallardo et al., November 13, 1981, Ser. A No. G 101/81, paragraph 26.
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Preliminary
Objections, Judgment of June 26, 1987, Series C Nº 1, paragraph 88;
Fairén Garbi and Solís Corrales Case, Preliminary Objections,
Judgment of June 26, 1987, Series C Nº 2, paragraph 87; and Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987, Series
C Nº 3, paragraph 90.
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, Series C Nº 4, paragraph 64; Inter-Am.Ct.H.R., Godínez Cruz
Case, Judgment of January 20, 1989, Series C Nº 5, paragraph 67;
Inter-Am.Ct.H.R., Fairén Garbi and Solís Corrales Case, Judgment
of March 15, 1989, Series C Nº 6, paragraph 88; Inter-Am.Ct.H.R.,
Caballero Delgado and Santana Case, Preliminary Objections, Judgment
of January 21, 1994, Series C Nº 17, paragraph 63; Inter-Am.Ct.H.R.,
Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1),
46(2)(a) and 46(2)(b) of the American Convention on Human Rights),
Advisory Opinion OC-11/90, August 10, 1990, Series A Nº 11,
See, in this regard: IACHR, Report Nº 28/01, Case 12.367, Mauricio
Herrera Ulloa and Fernán Vargas Rohrmoser of the newspaper La
Nación, Costa Rica, December 3, 2001.