Libro Primero Título I. Principios básicos

(Nullum poena sine lege). No penalty shall be imposed if the law has not previously established it.

(Nullum proceso sine lege). No proceedings may be initiated nor any complaint or private criminal complaint processed, except for acts or omissions classified as crimes or misdemeanors by a prior law.

Without such prerequisite, what has been done is null and entails liability of the tribunal.

The tribunals and the procedural subjects shall not vary the forms of the proceedings, nor that of its procedural acts or incidents.

No one may be convicted, punished or subjected to a security and correction measure, except in a final judgment, obtained through a procedure carried out in accordance with the provisions of this Code and the norms of the Constitution, with strict observance of the guarantees provided for persons and of the powers and rights of the accused person or accused.

Non-observance of a guarantee rule established in favor of the accused person may not be invoked to his detriment.

Criminal proceedings have as their object the investigation of an act designated as a crime or misdemeanor and of the circumstances in which it could have been committed; the establishment of the possible participation of the person charged; the pronouncement of the respective judgment, and the execution thereof.

The victim or the aggrieved party and the accused person, as procedural subjects, have the right to effective judicial protection. The procedure, by application of the principle of due process, must respond to the legitimate claims of both.

Only after a punishable act has been committed shall proceedings for the same be initiated.

The trial and decision of criminal cases shall be carried out by impartial and independent judges, subject only to the Constitution and the law. Penal execution shall be under the charge of execution judges.

For no reason may the remaining authorities of the State arrogate to themselves the trial of pending cases or the reopening of those already concluded by final decision.

No one may be tried, convicted, punished or subjected to a security and correction measure, except by the tribunals designated by law before the act giving rise to the case.

The Public Prosecutor's Office, as an institution, enjoys full independence for the exercise of criminal action and the investigation of crimes in the manner determined in this Code, except for the hierarchical subordination established in its own law.

No authority may give instructions to the head of the Public Prosecutor's Office or its subordinates regarding the manner of carrying out the criminal investigation or limiting the exercise of the action, except for the powers that this law grants to the courts of justice.

Public officials and public employees shall show judges and tribunals the respect and consideration deserved by virtue of their high hierarchy. The orders, decisions or mandates issued by them in the exercise of their functions shall be obeyed immediately. The violation of these precepts shall be punishable in accordance with the Penal Code.

Any action by private individuals, public officials and employees of any category tending to limit or impede the exercise of the jurisdictional function is strictly prohibited. Likewise, no public official or public employee may make insinuations or recommendations of any nature that could influence or constrain the free conduct or judgment of the judge.

The judge who suffers any interference in the exercise of his function shall bring it to the attention of the Supreme Court of Justice, which shall take the appropriate measures to cause such interference to cease.

Procedural subjects must comply with the tribunal's decisions and may only challenge them by the means and in the manner established by law.

Orders and judgments shall contain a clear and precise reasoning of the decision; its absence constitutes an absolute defect of form.

The reasoning shall express the factual and legal grounds on which the decision is based, as well as the indication of the value assigned to the means of evidence.

The mere listing of the documents of the proceedings or the mention of the requests of the parties shall in no case replace the reasoning.

Any judicial decision lacking reasoning violates the constitutional right of defense and of criminal action.

The function of the tribunals in the proceedings is obligatory, free of charge and public. Cases of reserved diligences or actions shall be expressly indicated by law.

Tribunals may not waive the exercise of their function, except in the cases provided by law. Interested parties may not resort to a tribunal other than that deemed legally competent.

The defendant shall be treated as innocent during the procedure, until a final judgment declares him liable and imposes a penalty or a security and correction measure.

Provisions of this law that restrict the liberty of the accused person or that limit the exercise of his powers shall be interpreted restrictively; in this matter, extensive interpretation and analogy are prohibited, unless they favor liberty or the exercise of his powers.

The only coercive measures possible against the accused person are those authorized by this Code, they shall be exceptional in nature and shall be proportional to the penalty or security and correction measure expected from the procedure, in strict subjection to the pertinent provisions.

Doubt favors the accused person.

The accused person may not be compelled to declare against himself nor to declare himself guilty. The Public Prosecutor's Office, the judge or the tribunal shall warn him clearly and precisely that he may or may not answer the questions with full liberty, recording it in the respective proceedings.

The tribunals and other authorities that intervene in the proceedings shall comply with the duties imposed on them by the Constitution and the international treaties on respect for human rights.

No one shall be criminally prosecuted more than once for the same act.

However, a new criminal prosecution shall be admissible:

1)When the first was brought before an incompetent tribunal.

2)When the non-prosecution results from defects in the initiation or in the exercise thereof.

3)When the same act must be tried by different tribunals or procedures, which cannot be unified, pursuant to the respective rules.

Terminated proceedings shall not be reopened, except in case of review as provided in this Code.

No proceedings may be suspended, interrupted or caused to cease, at any stage of the proceedings, except in the cases expressly determined by law.

The defense of the person or of their rights is inviolable in criminal proceedings. No one may be convicted without having been cited, heard and defeated in pre-established procedure and before a competent tribunal, in which the formalities and guarantees of law have been observed.

Those who are subject to proceedings shall enjoy the guarantees and rights that the Constitution and the laws establish, without discrimination.

Except for international treaties, the State does not recognize in its territory places of asylum where criminals obtain impunity or the reduction of their sentences.

Foreign nationals shall not resort to the diplomatic channel except for denial of justice and, in any event, until they have exhausted all remedies established by Guatemalan laws. The fact that a judgment or a decision is contrary to their interests shall not be understood as a denial of justice.

The criminal action shall be exercised in accordance with the following classification:

1)Public action;

2)Public action dependent on private instance or requiring state authorization;

3)Private action.

All crimes of public action shall be prosecutable on its own initiative by the Public Prosecutor's Office, representing society, except crimes against traffic safety and those whose principal sanction is the penalty of fine, which shall be processed and resolved upon complaint by competent authority in accordance with the trial for misdemeanors established by this Code.

For their prosecution by the State prosecuting authority, the following crimes shall depend on private instance, except when reasons of public interest intervene:

1)Minor or negligent injuries and venereal contagion;

2)Denial of economic assistance and failure to comply with duties of assistance;

3)Threats, unlawful entry into a dwelling;

4)Statutory rape, incest, indecent abuse and rape, when the victim is over eighteen years of age. If the victim is a minor, the action shall be public;

5)Theft, concealment of property and fraud in consumption, when its value does not exceed ten times the lowest minimum wage for rural labor at the time of the commission of the crime, except where the aggrieved party is the State, in which case the action shall be public;

6)Fraud not committed by means of a check without provision of funds; or where the offended party is the State, in which case the action shall be public;

7)Misappropriation and unlawful retention;

8)Crimes against liberty of worship and religious sentiment;

9)Alteration of boundaries;

10)Usury and usurious negotiations.

The action to prosecute the crimes referred to in this Article shall be a public action when committed by a public official or public employee in the exercise of or on the occasion of his office.

If the victim is a minor or incapacitated person, the private instance may be made by whoever exercises his legal representation or by his guardian. However, proceedings shall be conducted on its own initiative when the crime is committed against a minor who has no parents, tutor or guardian, or against an incapacitated person who has no tutor or guardian, or when the crime is committed by one of his relatives within the degrees established by law, tutor or guardian.

A party's instance shall obligate public action, except in the case of conciliation warranting the application of an opportunity criterion or the authorization of the conversion of the public action into a private action.

In cases of flagrancy, the police shall intervene to prevent continued injury to the protected legal interest or the commission of other crimes and to secure the means of investigation.

For cases in which State authorization is required for the initiation of criminal action, the Public Prosecutor's Office shall proceed as established in this Code for the processing of the antejuicio.

The following crimes shall be prosecutable only by private action:

1)Those relating to honor;

2)Damage;

3)Those relating to copyright, industrial property and computer crimes:

a)Violation of copyright;

b)Violation of industrial property rights;

c)Violation of trademark rights;

d)Alteration of programs;

e)Reproduction of computer instructions or programs;

f)Use of information;

4)Violation and disclosure of secrets;

5)Fraud by check.

In all of the foregoing cases, proceedings shall be brought solely upon accusation by the victim pursuant to the special procedure regulated in this Code. If the victim lacks economic means, proceedings shall be conducted pursuant to Article 539 of this Code. In the event that the victim is a minor or incapacitated person, proceedings shall be conducted as indicated in the third paragraph of the preceding Article.

When the Public Prosecutor's Office considers that the public interest or citizen security are not seriously affected or threatened, with the prior consent of the aggrieved party and judicial authorization, it may abstain from exercising criminal action in the following cases:

1)If they are crimes not punished with imprisonment;

2)If they are crimes prosecutable upon private instance;

3)In crimes of public action, whose maximum imprisonment penalty does not exceed five years, with the exception of the crimes defined in the Law Against Drug Trafficking.

4)That the liability of the indicted person or his contribution to the perpetration of the crime is minimal;

5)That the accused has been directly and seriously affected by the consequences of a culpable crime and the penalty is inappropriate;

6)The opportunity criterion shall be applied by the first-instance judges mandatorily to the accomplices or perpetrators of the crime of concealment who give effective testimony against the perpetrators of the following crimes: against health, defraudation, smuggling, crimes against the public treasury, the national economy, State security, against the Constitution, against public order, against social tranquility, bribery, embezzlement and illicit negotiations, as well as in cases of kidnapping or abduction. During the course of the proceedings, such persons may not be subjected to criminal prosecution with respect to the facts to which they testify, provided that their statement effectively contributes to delimiting the criminal liability of the perpetrators of the aforementioned crimes under the strict liability of the Public Prosecutor's Office, which shall be established in the effective investigation of the prosecutor. In this case, the first-instance judge is obliged to authorize it, the corresponding dismissal of proceedings being applied on its own initiative on this occasion.

The statement shall be received in compliance with the requirements of anticipated evidence, with the prosecutorial agent in charge of the investigation proceeding to determine the appropriate form of presentation before the respective judge. If the prosecutor has to travel, the first-instance judge who oversees the investigation, on an urgent basis and in accordance with the law, shall in this case commission the competent judge who together with the prosecutor must travel to the place where the person is located to carry out the proceeding.

The opportunity criterion referred to in numerals 1 to 5 of this article shall not apply to criminal acts committed by a public official or public employee by reason of or in the exercise of his office.

To apply the criterion of opportunity, in items 1 to 5 established in Article 25, it is necessary that the accused person has repaired the damage caused or there is an agreement with the aggrieved party and guarantees are granted for its performance in which, even, the uses and customs of the various communities for the resolution of conflicts, the general principles of law or equity may be applied, provided that they do not violate constitutional guarantees or international treaties on Human Rights.

In case there is no directly aggrieved or affected person, the Public Prosecutor's Office or whoever acts in its stead may request from the judge the application of the criterion of opportunity, provided that the accused person repairs the damage and losses caused to society or grants sufficient guarantees for its redress within the maximum time limit of one year. In case of insolvency, the accused person shall redress the social harm through the provision of social service to the community in the activity designated by the tribunal, in periods of ten to fifteen hours per week, during the period of one year, in which he or she shall also observe the rules of conduct and abstentions indicated by the tribunal. If he or she disobeys the imposed rules of conduct or abstentions, he or she shall commit the crime of disobedience.

The rules or abstentions that may be imposed are the following:

1)To reside in a specified place or to submit to the supervision determined by the judge;

2)The prohibition against visiting certain places or persons;

3)To abstain from the use of narcotics or alcoholic beverages;

4)To complete primary schooling, to learn a profession or trade or to take training courses at the institution determined by the judge;

5)To perform work of public utility for the State or charitable institutions, outside his or her regular working hours;

6)To undergo medical or psychological treatment, if necessary;

7)Prohibition against carrying a firearm;

8)Prohibition against leaving the country;

9)Prohibition against driving motor vehicles; and,

10)To remain in a job or employment, or to adopt within the time limit determined by the judge, a trade, art, industry or profession, if he or she lacks his or her own means of subsistence.

The application of the criterion of opportunity shall cause the archiving of the proceedings for the term of one year, upon the expiry of which the criminal action shall be extinguished, unless it is proven during this period that there was fraud, error, intent, simulation or violence for its granting or if elements arise demonstrating that the crime figure was more serious and that had they been known they would not have permitted the application of the criterion of opportunity.

Once the request for the application of an opportunity criterion has been filed by the Public Prosecutor's Office or by the municipal syndic, or by the aggrieved person or the accused person or his or her defense counsel, the peace judge shall summon the parties, under warning of law, to a conciliation hearing.

When the parties are present, the judge shall explain the purpose of the hearing, proceeding to hear, in that order, the prosecutor or assistant prosecutor or municipal syndic, the victim or aggrieved person and the accused person. The judge must act impartially, helping the parties to find an equitable, just and effective solution, in order to promote resolution of the conflict. The function of the judge is to be a facilitator in communication and constructive dialogue between the parties. The parties may be assisted by their attorneys.

If an agreement is reached, a record signed by those appearing shall be drawn up. If there is no agreement, a note thereof shall be made and the processing of the matter shall continue. In the conciliation record the agreed obligations shall be determined, among which shall be included reparation of the damage and payment of the losses if applicable, indicating, if so agreed, the time limit for compliance therewith and the establishment of the necessary guarantees. The certification of the conciliation record shall have the status of an enforceable title for the civil action.

If the Public Prosecutor's Office considers that the opportunity criterion is appropriate and the victim does not accept any of the proposed conciliation formulas, it may grant conversion of the action at the request of the aggrieved person.

The parties, only by mutual agreement, in crimes conditioned on private instance, in those of private action, as well as those in which the opportunity criterion applies, except paragraph 6 of Article 25, with the approval of the Public Prosecutor's Office or of the municipal syndic, may submit their criminal conflicts to the cognizance of conciliation or mediation centers registered by the Supreme Court of Justice, through the corresponding criminal Trial Courts of First Instance, composed of suitable persons, natives of the community or under the direction of a licensed attorney capable of facilitating agreements and, once the same have been obtained, a succinct record shall be transmitted to the Peace Judge for its homologation, provided it does not violate the Constitution or International Treaties on human rights, for which a brief judicial decree shall suffice, which shall give the agreement the value of an enforceable title sufficient for civil action in case of non-compliance with the patrimonial agreements.

The criterion of opportunity shall not be granted more than once to the same accused person for injury to or threat against the same legally protected interest through intent.

The Public Prosecutor's Office shall take the necessary measures to ensure strict compliance with this provision.

Public-exercise actions may be transformed into private actions, exercised solely by the aggrieved party in accordance with the special procedure provided for and provided that they do not produce social impact, in the following cases:

1)When dealing with the cases provided for dispensing with criminal prosecution, pursuant to the opportunity criterion.

2)In any crime requiring a complaint or private instance, at the request of the person entitled to instigate, when the Public Prosecutor's Office authorizes it, because there is no seriously compromised public interest and the aggrieved party guarantees an efficient criminal prosecution.

3)In crimes against property, under the regime provided in the preceding subsection, except in the case of aggravated theft and aggravated robbery crimes, if in the same act there is a plurality of aggrieved parties, the consent of all of them shall be necessary, even though only one has assumed the exercise of the criminal action.

In crimes whose maximum penalty does not exceed five years of imprisonment, in negligent crimes, and in crimes against the tax legal order *to which Articles 358 “A”, 358 “B”, 358 “C” and 358 “D” refer, the Public Prosecutor's Office, at the request of the person interested in enjoying this benefit, and upon prior verification of payment of the amount of the taxes withheld or defrauded, as well as the surcharges, fines and compensatory interest, which shall be evidenced by means of documentation to be issued by the tax authority, shall propose the conditional suspension of criminal prosecution. The suspension may not be granted to repeat offenders, nor to a person who has previously been convicted of an intentional crime.

The request shall contain:

1)The data serving to identify the accused person;

2)The punishable act attributed;

3)The applicable criminal provisions; and,

4)The instructions or impositions required.

The Judge of First Instance, based on the request of the Public Prosecutor's Office, shall order the conditional suspension of criminal prosecution if the accused person expresses conformity admitting the truthfulness of the facts imputed to him or her and if in the opinion of the Judge he or she has redressed the corresponding damage or has sufficiently secured redress, even by agreements with the aggrieved party or assumes or guarantees the obligation to redress it, which guarantee may consist of mortgage, pledge or bond.

If there is no directly aggrieved or affected person and in case of insolvency of the accused person the rule contained in the second paragraph of Article 25 Bis shall apply.

The suspension of criminal prosecution shall be for no less than two years nor more than five, nor shall it in any way impede the progress of the civil action arising from breach of the agreements entered into between the parties. Once the fixed period has elapsed without the accused person committing a new intentional crime, the criminal action shall be deemed extinguished.

The judge shall order that the accused person, during the probation period, submit to a regime which shall be determined in each case and whose purpose shall be to improve their moral, educational and technical condition, under the control of the tribunals.

If the accused person departs considerably, without justification, from the imposed conditions or commits a new crime, the suspension shall be revoked and the proceedings shall continue their course. In the first case, the tribunal may extend the probationary time limit up to the limit of five years, when it had originally set a shorter one.

The revocation of the conditional suspension of the criminal prosecution shall not prevent the conditional suspension of the execution of the penalty.

The probationary time limit shall be suspended when, by virtue of other proceedings, the accused person is deprived of his liberty. If in such proceedings he is not deprived of his liberty, the time limit shall continue to run, but the declaration of extinction of the criminal action shall be suspended until the decision exempting him from liability or indefinitely terminating the other proceedings with respect to him becomes final.

When public action depends on private initiative, the Public Prosecutor's Office may only exercise it once a complaint or private criminal complaint with respect to the act has been filed by one who has standing to do so, but proceedings shall be conducted on its own initiative in the cases provided for in the Criminal Code.

Criminal prosecution is extinguished:

1)By death of the accused person.

2)By amnesty.

3)By limitation period.

4)By payment of the maximum provided for the fine penalty, if the accused person at the same time admits his or her guilt, in the case of crimes punished only with that kind of penalty.

5)By expiry of the probationary time limit, without the suspension being revoked, when criminal prosecution is suspended.

6)By revocation of the private instance, in cases of private crimes that depend on it.

7)By waiver or by abandonment of the private criminal complaint with respect to private crimes at the instance of a party.

8)By death of the aggrieved person, in cases of crimes of private action; however, the action already initiated by the offended person may be continued by his or her heirs or successors, except in cases established by the Penal Code.

The limitation period during the procedure is interrupted by the flight of the accused person, when it makes criminal prosecution impossible.

Once the cause of interruption has disappeared, the time limit shall begin to run in full.

The limitation period runs, is suspended or is interrupted separately for each of the participants in the crime, unless expressly provided otherwise.

The state authorization to prosecute is irrevocable. The private instance may be revoked by the aggrieved party or their legal representative, with the consent of the accused. In the case of a minor or incapacitated person, their legal representative may revoke the instance with judicial authorization.

The retraction of the private instance extends to all participants in the punishable act.

The waiver of the private action shall benefit only those participants in the punishable act to whom it expressly refers. If it does not mention any person, it shall be understood to extend to all participants in the punishable act.

The abandonment of the private criminal complaint shall extinguish the action with respect to all accused persons who effectively intervene in the procedure.

The representative of a minor or incapacitated person may not waive the action or withdraw the private criminal complaint without judicial authorization.