Libro Primero Título VI. De las penas

The principal penalties are: death, imprisonment, arrest and fine.

Accessory penalties are: absolute disqualification; special disqualification; confiscation and loss of the objects or instruments of the crime; expulsion of foreigners from the national territory; payment of costs and procedural expenses; publication of the judgment and all others provided for by other laws.

The death penalty is extraordinary in nature and may only be applied in the cases expressly set forth in the law and shall not be executed except after all legal remedies have been exhausted. The death penalty may not be imposed:

1º.For political crimes.

2º.When the conviction is based on presumptions.

3º.On women.

4º.On males over seventy years of age.

5º.On persons whose extradition has been granted under that condition.

In these cases and whenever the death penalty is commuted to deprivation of liberty, imprisonment shall be applied at its maximum limit.

Article 1 of Decree 20-96, both of the Congress of the Republic). The penalty of imprisonment consists of deprivation of personal liberty and shall be served in the penal centers designated for that purpose. Its duration extends from one month to fifty years.

Those sentenced to imprisonment who observe good conduct during three-fourths of the sentence shall be set at liberty, on the understanding that if they commit a new crime during the time they are enjoying said privilege, they shall serve the remainder of the penalty and that corresponding to the new crime committed.

The reduction referred to in this article shall not apply when the convict observes bad conduct, commits a new crime or seriously infringes the regulations of the penal center in which he is serving his sentence.

The penalty of arrest consists of the deprivation of personal liberty for up to sixty days. It shall be applied to those liable for minor offenses and shall be executed in places different from those designated for serving the penalty of imprisonment.

Women shall serve penalties involving deprivation of liberty in special establishments. When such establishments do not have the necessary conditions to attend to those who are in a state of pregnancy or within the forty days following childbirth, they shall be referred to an adequate health center, under custody, for the strictly necessary time.

The work of inmates is compulsory and must be remunerated. The proceeds of the remuneration shall be unseizable and shall be applied:

1.To repair and indemnify the damage caused by the crime.

2.To the maintenance obligations to which he is bound.

3.To contribute to the extraordinary and necessary expenses to maintain or increase the productive means that, as a source of work, benefit the inmate.

4.To establish a personal fund that shall be delivered to him upon being released.

The work shall be compatible with the sex, age, capacity and physical condition of the inmate. Inmates over sixty years of age, those who have a physical impediment and those who suffer from an illness that makes work impossible or dangerous for them are not obligated to work.

If the accused or convicted person suffers from an illness requiring special confinement, his transfer to an adequate establishment shall be ordered, where he shall remain only for the time indispensable for his cure or relief. This provision shall not apply if the center has an adequate establishment.

The time of confinement shall be credited toward service of the penalty, except in case of simulation or fraud to obtain or prolong the confinement.

The following are commutable:

1.Imprisonment not exceeding five years. The commutation shall be set between a minimum of five quetzales and a maximum of one hundred quetzales per day, taking into account the circumstances of the act and the economic conditions of the convicted person.

2.Arrest.

Commutation shall not be granted:

1º.To recidivists and habitual offenders;

2º.To those convicted of theft and robbery;

3º.When so prescribed by other laws;

4º.When, having assessed the conditions of the convicted person, the motives for his conduct and the circumstances of the act, his social dangerousness is established, in the judgment of the Judge;

*5º.

To those convicted of the crimes of tax defraudation, customs defraudation, customs smuggling, misappropriation of taxes and resistance to the auditing action of the Tax Administration.

6º.To those convicted of the crimes covered in the articles contained in Chapter I of Title III.

*7º

To those convicted of the crimes against the public administration and the administration of justice.

The penalty of fine consists in the payment of an amount of money that the judge shall set, within the legal limits.

The fine is personal in nature and shall be determined in accordance with the economic capacity of the convicted person; their wage, salary or income received; their aptitude for work, or production capacity; duly proven family burdens and the other circumstances indicating their economic situation.

The fine shall be paid by the convicted person within a time limit of no more than three days, counted from the date on which the judgment became final and enforceable.

Upon prior granting of real or personal security, at the request of the convicted person, payment of the fine in periodic installments may be authorized, the amount and payment dates of which the judge shall set taking into account the economic conditions of the obligor; in no case shall the term in which the installment payments must be made exceed one year.

Those sentenced to a fine who do not pay it within the legal term, or who fail to make the installment payments for its due payment, or who are insolvent, shall serve their sentence with deprivation of liberty, with the time regulated, according to the nature of the act and the personal conditions of the sentenced person, at between five quetzales and one hundred quetzales for each day.

Absolute disqualification comprises:

1º.The suspension of political rights.

2º.The loss of the public employment or office held by the convicted person, even if derived from popular election.

3º.The incapacity to obtain public offices, employments and commissions.

4º.The deprivation of the right to elect and be elected.

5º.The incapacity to exercise parental authority and to be a tutor or protutor.

Special disqualification shall consist, according to the case:

1º.In the imposition of any one or more of the disqualifications established in the different subsections of the preceding article.

2º.In the prohibition on exercising a profession or activity whose exercise depends on an authorization, license or qualification.

In crimes whose protected legal interest is public administration or the administration of justice, special disqualification shall be that corresponding to the second and third subsections of the preceding article. In the case of legal persons, special disqualification shall consist of incapacity to contract with the State.

Together with the principal penalty, the penalty of special disqualification shall be imposed, when the criminal act is committed with abuse of the exercise or with violation of the duties inherent to a profession or activity.

In crimes against public administration and administration of justice, together with the principal penalty, the penalty of absolute or special disqualification shall be imposed, which may not be less than four years.

The penalty of imprisonment carries with it the suspension of political rights for the duration of the sentence, even if it is commuted, unless rehabilitation is obtained.

Confiscation consists in the loss, in favor of the State, of the objects derived from a crime or misdemeanor, and of the instruments with which they were committed, unless they belong to a third party not liable for the act. When the aforementioned objects are of prohibited use or are not of lawful commerce, confiscation shall be ordered, even if the existence of the crime or the culpability of the accused person is not declared.

Confiscated objects of lawful commerce shall be sold and the proceeds of the sale shall increase the private funds of the Judicial Branch.

Confiscation shall proceed only in the event that the competent judge or tribunal does not declare the extinction of domain, in accordance with the law on the matter.

Publication of the judgment is an accessory penalty to the principal penalty imposed for crimes against honor and against sexual liberty and indemnity, regulated in the Criminal Code and other specific provisions on the matter.

In cases of crimes against honor, at the request of the offended person or their heirs, the judge, at his prudent discretion, shall order publication of the judgment in one or two newspapers of largest circulation in the Republic, at the expense of the convicted person or subsidiarily of the applicants, when he deems that publicity may contribute to redressing the moral damage caused by the crime. In no case may publication of the judgment be ordered where it affects minors or third parties.

In cases of crimes against sexual liberty and indemnity, the judgment shall be published on the official electronic pages of the Public Prosecutor's Office and the Judicial Branch, without making public the victim's personal data. In no case may publication of the judgment be ordered when the convicted person is a minor.

Unless specially determined otherwise, any penalty prescribed by law for a crime shall be understood to be imposed on the perpetrator of the consummated crime.

The perpetrator of attempt and the accomplice of a consummated crime shall be imposed the penalty prescribed by law for the perpetrators of the consummated crime, reduced by one third.

Accomplices to attempt shall be imposed the penalty prescribed by law for the perpetrators of the completed crime, reduced by two thirds.

The judge or tribunal shall determine, in the judgment, the corresponding penalty, within the maximum and minimum prescribed by law, for each crime, taking into account *the greater or lesser dangerousness of the offender, *the personal background of the offender and of the victim, the motive of the crime, the extent and intensity of the harm caused and the mitigating and aggravating circumstances concurring in the act, assessed both by their number and by their substance or importance.

The judge or tribunal shall expressly record the matters referred to in the preceding paragraph that it has deemed determinative for determining the penalty.

When the law provides that a penalty be increased or decreased by a specified quota or fraction, the maximum and the minimum shall be increased in the corresponding proportion, or decreased as applicable, the new penalty thus being fixed, within whose limits its application shall be graduated in accordance with the provisions of the preceding article.

If the offender becomes mentally ill after judgment has been pronounced, its execution shall be suspended as to the personal penalty. Upon recovering his mental health, the convicted person shall serve his penalty.

The same procedure shall be followed when mental illness supervenes while the convicted person is serving his sentence.

The sentence shall be computed from the date on which the convicted person had been detained, unless he has been released from custody.

The person liable for two or more crimes shall have imposed upon him all the penalties corresponding to the violations he has committed in order to serve them consecutively, beginning with the most serious ones, but the aggregate of the penalties of the same kind shall not exceed three times that of the longest duration; if all are of equal duration, they shall not exceed three times the penalty.

This maximum, however, in no case shall exceed:

1.Fifty years of imprisonment

2.Two hundred thousand quetzales of fine

In the event that a single act constitutes two or more crimes, or when one of them is a necessary means to commit the other, only the penalty corresponding to the crime for which the greater sanction is prescribed shall be imposed, increased by up to one-third. The tribunal shall impose all of the penalties corresponding to each of the violations if, in its judgment, this would be more favorable to the defendant than application of the preceding rule.

Where there is ideal concurrence of crimes punishable with imprisonment, crimes punishable with imprisonment and fine, or crimes punishable only with a fine, the judge, at his prudent discretion and under his responsibility, shall apply the respective sanctions in the manner that is most favorable to the defendant.

It shall be understood that there is a continued crime when several acts or omissions are committed in the following circumstances:

1º.With the same purpose or criminal decision.

2º.In violation of provisions protecting the same legally protected interest of the same or of a different person.

3º.In the same or in a different place.

4º.At the same or different time, taking advantage of the same situation.

5º.Of the same or of different seriousness.

In this case the sanction corresponding to the crime shall be applied, increased by one third.

Upon pronouncing judgment, the tribunals may conditionally suspend execution of the penalty, which suspension they may grant for a time of not less than two years nor more than five, if the following requirements concur:

1º.That the penalty consists of deprivation of liberty not exceeding three years;

2º.That the beneficiary has not previously been convicted for an intentional crime;

3º.That before perpetration of the crime, the beneficiary had observed good conduct and had been a constant worker;

4º.That the nature of the crime committed, its motives and circumstances, do not reveal dangerousness in the agent and it may be presumed that he will not reoffend.

5º.In the crimes against the Tax Regime referred to in articles 358 “A” 358 “B” and 358 “C”, if the convicted person has restored to the State the value of the taxes withheld or defrauded, as well as the surcharges, fines and compensatory interest determined by the tax authority upon prior tax assessment, at the request of the competent judge. In this case the maximum limit of the penalty provided in the Law for such unlawful acts shall not be taken into account for the granting of this benefit.

This benefit may be granted at the time the decision is rendered, or in cases in which there is a judgment that has acquired the authority of res judicata when the convicted person complies with the above-mentioned payment. Application of the benefit in the latter case shall correspond to the enforcement judge.

The benefit established in the preceding article shall not be granted when the judgment imposes, in addition to the personal penalty, a security measure, except in the case of supervised liberty or by means of telematic control, unless by virtue of the evidence submitted, in the opinion of the judge, the application thereof is not advisable.

The conditional suspension of the penalty may be extended to the accessory penalties; but it shall not exempt from the civil obligations derived from the crime.

The judge or tribunal of the case shall give a personal warning to the defendant regarding the nature of the benefit granted to him and the grounds that may cause its revocation, which shall be set forth by record in the case file.

If during the period of suspension of the execution of the penalty, the beneficiary commits a new crime, the benefit granted shall be revoked and the suspended penalty shall be executed plus what corresponds to him for the newly committed crime. If during the suspension of the sentence it is discovered that the convicted person has a criminal record for having committed an intentional crime, he shall suffer the penalty that had been imposed on him.

Upon expiration of the established period, without the convicted person having given cause to revoke the suspension, the penalty shall be deemed extinguished.

The Supreme Court of Justice has the power to grant conditional liberty, upon prior information to be processed for that purpose before the Board of Prisons and Released Persons or the institution acting in its stead.

Conditional liberty shall be granted in a decision that shall express the conditions imposed on the favored person, consisting of subjection to one or more security measures, which must be accompanied by the telematic control device, unless by virtue of the evidence presented, in the opinion of the judge, application thereof is not advisable.

Conditional liberty may be granted to the inmate who has served more than half of the penalty of imprisonment exceeding three years and not exceeding twelve; or who has served three-quarters of the penalty exceeding twelve years and, in addition, the following circumstances concur:

1º.That the inmate has not been previously convicted by final enforceable judgment for another intentional crime.

2º.Having observed good conduct during their confinement, shown by positive acts demonstrating that they have acquired habits of work, order and morality.

3º.That they have restituted the thing and repaired the harm in crimes against property and, in other crimes, that they have satisfied, to the extent possible, civil liability in the opinion of the Supreme Court of Justice.

The regime to which whoever obtains conditional liberty shall be subject shall last for the entire time remaining to serve the penalty imposed.

If during that period he commits a new crime or violates the security measures imposed, conditional liberty shall be revoked and the portion of the penalty that he failed to serve shall be enforced, without counting toward it the time he has remained at liberty.

Upon expiration of the period of liberty under conditional regime, without the beneficiary having given cause for revocation, the penalty shall be deemed extinguished.

The judges have authority to grant, in the judgment, judicial pardon, provided that, in their opinion, the circumstances in which the crime was committed warrant it and the following requirements are met:

1.That the offender is a first-time offender.

2.That before the perpetration of the crime, the beneficiary had observed irreproachable conduct and had maintained it during his imprisonment.

3.That the motives of the crime and the personal circumstances of the agent do not reveal social dangerousness in him and it may be presumed that he will not reoffend.

4.That the penalty does not exceed one year of imprisonment or consists of a fine.