Libro Primero Título IV. De las circunstancias que modifican la responsabilidad penal

The following are mitigating circumstances:

Psychic inferiority

1º.Conditions determined by organic or pathological circumstances that diminish, without excluding it, the subject's capacity to understand or to will.

Excess in the grounds of justification

2º.Excess over the limits established in the grounds of justification.

Emotional state

3º.The offender acting under stimuli so powerful that, naturally, they have produced outburst or obfuscation.

Effective repentance

4º.If the offender has zealously endeavored to repair the harm caused or to prevent its further pernicious consequences.

Reparation of the harm

5º.If the offender, in the opinion of the tribunal, has adequately and satisfactorily repaired, restored or compensated the harm caused before judgment is rendered.

Preterintentionality

6º.Not having intended to cause harm as serious as that which resulted

Presentation to the authority

7º.If, being able to evade the action of justice by flight or other suitable means, the accused person has voluntarily appeared before the authority.

Spontaneous confession

8º.The confession of the person under prosecution, if made in his or her first statement.

Ignorance

9º.Lack of education, given the nature of the crime, insofar as it influenced its commission.

Difficulty in foreseeing

10.In crimes committed through negligence, causing the harmful result under circumstances that made it highly improbable or difficult to foresee.

Provocation or threat

11.Provocation or threat on the part of the victim having immediately preceded, proportionate to the crime.

Vindication of offenses

12.Having committed the act in proximate vindication of a serious offense, caused to the author of the crime, his or her spouse, his or her common-law partner, his or her relatives within the degrees established by law, his or her adopters or his or her adoptees.

Proximate vindication means that which is exercised consecutively to the offense, or when there has not been the time necessary for reflection.

Incomplete exculpation

13.Those set forth in Article 25 when the requirements necessary to exclude liability in the respective cases do not concur.

Mitigating circumstances by analogy

14.Any other circumstance of equal significance and analogous to the preceding ones.

The following are aggravating circumstances:

Futile or abject motives

1º.The offender having acted for futile or abject motives.

Treachery

2º.Executing the act with treachery.

Treachery exists when the crime is committed employing means, modes or forms that tend directly or especially to ensure its execution, without risk arising from the defense that the victim might offer; or when the latter, due to his personal conditions or the circumstances in which he finds himself, cannot prevent, avoid the act or defend himself.

Premeditation

3º.Acting with known premeditation.

Known premeditation exists when it is demonstrated that the external acts performed reveal that the idea of the crime arose in the mind of its author sufficiently prior to its execution to organize, deliberate or plan it and that, in the time that elapsed between the intent and its accomplishment, he prepared the latter and executed it coldly and reflectively.

Seriously dangerous means

4º.Executing the act by means of explosives, harmful gases, flood, fire, poisoning, narcotic, stranding of a vessel, aviation accident, damage caused on purpose, derailment, disruption of public order or by any other means suitable to cause devastation of a general nature.

Taking advantage of calamity

5º.Taking advantage, for the execution of the crime, of the occurrence or prior occurrence of a cyclone, earthquake, flood, shipwreck, fire, derailment, traffic accident of any kind, explosion, disruption of public order or any other devastation or public calamity.

Abuse of superiority

6º.Abusing physical or mental superiority, or employing means that weaken the defense of the victim.

Cruelty

7º.Deliberately increasing the effects of the crime, causing others unnecessary for its commission, or employing means that add ignominy to the criminal action.

Preparation for flight

8º.Executing the act employing a vehicle or any means, mode or form that ensures the flight of the offender.

Artifice to commit the crime

9º.Committing the crime employing cunning, fraud, disguise or any other deception sufficient to facilitate the execution of the crime or to conceal the identity of the offender.

Cooperation of minors

10.Committing the crime using the participation or assistance of a minor person.

Profit motive

11.Committing the crime by means of price, reward or remunerative promise.

Abuse of authority

12.The offender taking advantage of his public character or of the power inherent in the position, office, ministry or profession, or committing it making use of functions that he previously held.

Assistance of armed people

13.Executing the crime with the assistance of armed people or of persons who ensure or provide impunity.

Gang

14.Executing the crime in a gang.

A gang exists when more than three armed persons concur in the commission of the crime.

Nighttime and unpopulated place

15.Executing the crime at night or in an unpopulated place, whether one or the other circumstance is chosen or taken advantage of, according to the nature and incidental circumstances of the act.

Disregard of authority

16.Executing the crime with offense to or disregard of the public authority or in the place where the latter is exercising its functions.

Drunkenness

17.The offender becoming drunk or intoxicated deliberately in order to execute the crime.

Disregard of the victim

18.Executing the act with contempt for the advanced age or childhood, sex, illness or condition of physical incapacity or economic destitution of the victim, according to the nature and incidental circumstances of the act.

Connection with another crime

19.Executing the crime in order to prepare, facilitate, consummate or conceal another crime, or to prevent its discovery.

Disregard of place

20.Executing the crime in the dwelling of the victim, when the latter has not provoked the event.

Ease of foresight

21.In negligent crimes, having caused the harmful result under circumstances that made it highly probable or easily foreseeable.

Use of publicity means

22.Executing the act by means of the press, engraving, pictures exhibited to the public, cinematograph, luminous projections, radiotelegraph, telephone, television or any other means of wide dissemination.

Recidivism

23.The circumstance of the defendant being a recidivist.

A recidivist is one who commits a new crime after having been convicted, in a final judgment, for a prior crime committed in the country or abroad, whether or not he has served the penalty.

Habituality

24.The circumstance of the defendant being a habitual offender.

A habitual offender shall be declared one who, having been convicted for more than two prior crimes, commits another or others, in Guatemala or outside it, whether or not he has served the penalties.

The habitual offender shall be sanctioned with double the penalty.

The Chiefs or Agents in charge of public order who commit any crime against persons or their property, provided it is proven that in the commission thereof serious abuse of authority and of the trust that the State has granted them occurred, shall have the penalty corresponding to the crime committed increased by one fourth imposed upon them.

Public officials or public employees who, abusing the office with which they are vested, commit any crime, shall be punished with the penalty corresponding to the crime committed, increased by one fourth.

Those which by themselves constitute a crime specifically provided for by law shall not be deemed as aggravating circumstances, nor those which the law has expressed in defining it, or which are so inherent to the crime that, without their concurrence, it could not be committed.

Mitigating or aggravating circumstances consisting of merely personal factors or characteristics of the offender, or resulting from his particular relations with the victim, shall not extend to co-offenders.

Mitigating or aggravating circumstances resulting from the material execution of the criminal act or from the means employed to carry it out shall be assessed only with respect to those participants who had knowledge thereof before or at the time of the act.

The following may be assessed as mitigating or aggravating circumstances, according to the nature, motives and effects of the crime: that the aggrieved person is the spouse or cohabitant, or a relative of the offender by consanguinity or affinity within the degrees established by law; as well as the relationships of respect, friendship, gratitude, dependence or hospitality existing on the part of the accused person with respect to the victim. In case of mistake as to the person, for the sanction, aggravating circumstances arising from the nature of the victim or from ties with the latter shall not be taken into account. Mitigating circumstances that would have concurred if the crime had been committed against the person against whom it had been intended shall be assessed in favor of the person liable.

There is no recidivism or habituality between intentional and negligent crimes, between ordinary crimes and purely military crimes, between ordinary crimes and political crimes, between crimes and misdemeanors.

As to political crimes, it is discretionary for the judges to assess recidivism or not, taking into account the personal conditions of the person responsible and the special circumstances in which the act was committed.

In addition to the imposition of the respective penalty, the habitual offender shall remain subject to security measures.

If ten years have elapsed between the perpetration of one crime and another, the prior conviction shall not be taken into account.

Time during which the offender remains deprived of liberty by preventive detention or by the penalty shall not be computed in this period.