I/A Court H.R., Case of Raxcacó Reyes v. Guatemala. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 133.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2006-2-e.pdf




The death penalty may not be extended to crimes to which it did not previously apply under domestic law. This prohibition is infringed where the nomen iuris of a crime remains unaltered, but the factual assumptions contained in the corresponding crime categories change substantially, to the extent that it becomes possible to apply the death penalty for actions that were not previously punishable by this sanction.




The death penalty was designed for truly exceptional circumstances, for those crimes that affect most severely the most important individual and social goods, and therefore merit the most severe punishment, always taking into account the circumstances of the case sub judice.


The mandatory death penalty treats those accused not as individual, unique human beings, but as indistinguishable, faceless members of a mass who will be subjected to the blind application of the death penalty, with no consideration of the specific circumstances of the crime and of the accused, such as his criminal record, the motive, the extent and severity of the harm caused, and possible extenuating or aggravating circumstances. Such an automatic and mandatory application of the death penalty violates the prohibition on arbitrarily depriving somebody of his life.


The violation of human rights by self-executing laws, whether they be individual or collective, occurs upon their promulgation. The mere existence of a provision establishing the mandatory death penalty and expanding the number of crimes punishable with this sanction constitutes, per se, a violation of Article 2 ACHR, even when the execution has not yet taken place.


The so-called "death row phenomenon," consisting of a prolonged period of detention awaiting execution, during which the condemned suffers mental anguish and is subject to extreme tension and psychological trauma, involves cruel, inhuman and degrading treatment.


In all cases in which the death penalty is imposed, it is necessary to consider the condemned person's personal circumstances, the conditions of his detention while he awaits execution and the duration of the detention prior to the execution.