Libro Primero · Título II Capítulo II. El imputado

Any person alleged to have committed a criminal act shall be referred to as a suspect, accused person, defendant or accused, and as a convicted person any person against whom a final judgment of conviction has been rendered.

The rights that the Constitution and this Code grant to the accused person may be asserted by him personally or through his defense counsel, from the first act of the procedure directed against him until its conclusion.

The first act of the procedure shall be understood as any indication pointing to a person as the possible author of a punishable act or of participating therein, before any of the criminal prosecution authorities established by this Code.

If the indicted person is deprived of his liberty, every authority intervening in the procedure shall ensure that he immediately knows the rights granted to him by the fundamental laws of the State and this Code.

At the first opportunity the accused shall be identified by name, personal data and distinguishing marks. If he abstains from providing such data or provides it falsely, identification shall proceed by witnesses or by other means deemed useful. Doubt regarding the data obtained shall not alter the course of the procedure and errors concerning such data may be corrected at any opportunity, even during penal execution.

If necessary, photographs shall be taken or recourse may be had to dactyloscopic identification or to another similar means.

The Judicial Branch shall maintain a register in which shall appear the name of each detained person, with all identifying data, their domicile or residence, the place of detention, the judge who ordered it and the tribunal holding them in its custody, the name and domicile of their defense counsel, and those of a person trusted by the detained person. The police, the Public Prosecutor's Office and the judges shall be obligated to immediately report to the register every apprehension and detention they carry out, with the data available at that time. The Judicial Branch shall regulate the service and shall be responsible for its proper functioning.

The register of detentions shall not constitute a register of criminal records. The data recorded in the register shall be retained for six years.

The register shall be open to public consultation and shall remain permanently open. The post, telegraph and telecommunications offices shall be agencies of the service; their employees and public officials shall be obligated to respond to inquirers free of charge, for which purpose they shall communicate with the register by the fastest possible means.

The accused person, if not subject to pretrial detention, shall indicate at the first opportunity their residence and designate a place to receive summonses and notifications within the population perimeter of the seat of the tribunal and, thereafter, shall keep such data updated, informing the Public Prosecutor's Office or the tribunal, as the case may be, of any changes thereto. If the accused person is unable to designate a place for the foregoing purposes, that of the defense counsel shall be fixed on its own initiative, to whom the decision shall be communicated. In that case, the defense counsel and the accused person, by common agreement, shall establish the manner of communicating. The defense counsel shall inform the Public Prosecutor's Office and the tribunal of the agreed manner of communication, and of any alteration thereto or its eventual interruption.

The mental disorder of the accused person shall cause the suspension of his criminal prosecution until such incapacity disappears.

Without prejudice to the rules governing the trial for the exclusive application of a security and correction measure, verification of this incapacity shall prevent the intermediate procedure, the trial and any critical assessment of the conduct attributed to him, but shall not prevent the investigation of the fact or the continuation of the procedure with respect to other accused persons.

The incapacity shall be declared by the competent tribunal, according to the state of the trial.

If incapacity is suspected, the Public Prosecutor's Office or the competent tribunal shall order the corresponding expert examination. Without prejudice to his own intervention, the procedural rights of the accused person may be exercised by his guardian, and if he has none, by defense counsel.

When commitment to a psychiatric hospital is necessary for the preparation of the report on the mental state of the accused person, the measure may only be ordered by the judge of first instance, or by the competent tribunal, as applicable.

The measure shall be ordered by reasoned decision, taking the precautionary measures warranted by the case.

The commitment, in total, may not exceed one month in duration.

The Public Prosecutor's Office or the tribunals may order the personal examination of the accused person by a forensic physician, for the verification of circumstances of importance to the investigation. If for any reason the forensic physician is unable to perform the procedure or is unavailable, another physician may conduct the examination.

In urgent cases, it may be carried out by said authorities without the intervention of an expert, with the consent of the accused and in the presence of his defense counsel.

The accused person who, without serious impediment, fails to appear in response to a summons, escapes from the establishment or place where he is detained, evades the arrest order issued against him, or absents himself from the place assigned for residence without leave of the tribunal, shall be declared in contumacy.

The declaration of contumacy shall be issued by the first instance judge or the competent tribunal, after verification of the non-appearance, escape or absence, issuing a preventive detention order. A travel restriction order shall also be issued to the corresponding authorities so that he may not leave the country.

The photograph, drawing, data and personal distinguishing features of the person declared in contumacy may be published in the communications media to facilitate his immediate apprehension.

The declaration of default shall not suspend the preparatory procedure.

In the others, the procedure shall be stayed only with respect to the defaulting person, retaining the procedural acts, effects, instruments or items of evidence whose preservation is indispensable, and shall continue for the other accused persons present.

The declaration of default shall entail revocation of the liberty granted to the accused person and shall oblige him to pay the costs caused.

When the defaulting person appears or is placed at the disposal of the authority requesting him, the proceedings shall continue according to their stage with respect to such defendant.

Upon commencement of the oral hearing, the judge shall explain to the accused, in simple and clear words, the purpose and manner in which the procedural act shall be conducted. In the same manner, he shall inform him of the fundamental rights to which he is entitled and shall also warn him that he may refrain from testifying and that such decision may not be used to his prejudice. Likewise, he shall ask him to provide his full name, age, marital status, profession or occupation, nationality, date and place of birth, domicile, place of residence and, if applicable, the name of the spouse and children and the persons with whom he lives, on whom he depends or who are under his care.

In the statements made by the accused during the preparatory procedure, the judge shall instruct him that he may require the presence of his defense counsel and consult with him as to the position to adopt, before beginning the statement concerning the facts.

The hearing shall be conducted in accordance with the following:

1.The judge shall give the floor to the prosecutor to notify the accused of the facts, with all the circumstances of time, manner and place, their provisional legal classification, applicable legal provisions, and a description of the existing elements of conviction.

2.If the accused agrees to make a statement, the judge shall give him time to do so freely.

3.After making a statement, the accused may be subjected to lawful questioning by the prosecutor and defense counsel.

4.The judge shall give the floor to the prosecutor and to defense counsel to demonstrate and argue regarding the possibility of binding him to proceedings, the judge having to rule immediately.

5.The judge shall again give the floor to the prosecutor and to defense counsel to demonstrate and argue regarding the need for coercive measures, the judge having to rule immediately.

6.The prosecutor and defense counsel shall address the reasonable time limit for the investigation. The judge shall set a date for the filing of the conclusive act and a date and time for the intermediate hearing, which shall be held within a time limit of not less than ten (10) days nor more than fifteen (15) days from the date set for the conclusive act. Once the conclusive act has been filed, a copy thereof shall be delivered to the parties requesting it, and the case file and means of investigation shall be left at the judge's disposal so that he may examine them until the date set for the hearing.

*7. The legally accredited complainant may intervene in the hearing following the prosecutor, in each of his interventions. The parties may not oppose the presence of the complainant thereat. The victim present at the hearing may be heard if he or she so wishes.

The accused shall not be placed under oath but shall simply be admonished to tell the truth. He shall not be subjected to any kind of coercion, threat or promise, except for the warnings expressly authorized by criminal or procedural law. Nor shall any means be used to compel, induce or cause him to make a statement against his will, nor shall charges or recriminations be made against him aimed at obtaining his confession.

Questions shall be clear and precise; captious or suggestive questions are not permitted and answers shall not be peremptorily demanded.

If the suspect has been apprehended, immediate notice shall be given to the first-instance judge or to the peace judge, as applicable, so that he may make his statement in his presence within the time limit of twenty-four hours counting from his apprehension. The judge shall provide the necessary means to ensure that a defense counsel may be present at the proceeding.

During the intermediate procedure, if the accused person so requests, the statement shall be received by the first-instance judge.

During the trial, the statement shall be received at the opportunity and in the manner provided for by this Code.

The accused person may make a statement as many times as he wishes, provided that his statement is relevant and does not appear solely as a dilatory or disruptive procedure.

During the preparatory procedure the suspect may spontaneously inform the Public Prosecutor's Office about the criminal act attributed to him, but he must be assisted by an attorney of his choice or by a public defense counsel.

The police may only direct questions to the accused person to verify their identity, with the warnings and conditions established in the preceding articles. It shall also instruct them that they may inform the Public Prosecutor's Office or make a statement before the judge, as the case may be.

When there are several accused persons, the statements shall be received avoiding communication among them before all of them have been received.

The accused person has the right to choose a translator or interpreter of his or her confidence to assist him or her during his or her statements, in the trials or in those hearings for which his or her prior summons is necessary. When he or she does not correctly understand the official language and does not make use of the right established above, a translator or interpreter shall be appointed ex officio for those acts.

Non-observance of the provisions contained in this section shall preclude using the statement to ground any decision against the accused person. Minor formal non-observances that may be corrected during the act or subsequently are excepted. Whoever must assess the act shall appraise the nature of such non-observances.

The indicted person has the right to choose a defense counsel of his or her confidence. If he or she does not do so, the tribunal shall appoint one on its own initiative, no later than before his or her first statement on the act is made, in accordance with the regulations for official defense. If he or she prefers to defend himself or herself, the tribunal shall authorize it only when it does not prejudice the effectiveness of the technical defense and, otherwise, shall appoint one on its own initiative. The intervention of defense counsel does not impair the right of the accused person to make requests and observations.

Only attorneys with active collegiate status may be defenders. Judges shall not allow this provision to be contravened through a mandate.

For the exercise of their function, defenders shall be admitted immediately and without any formality by the police, the Public Prosecutor's Office or by the competent tribunal, as the case may be.

The defense of several accused persons in the same procedure by a common defense counsel is, in principle, inadmissible.

The competent tribunal, according to the period of the procedure, or the Public Prosecutor's Office may permit common defense when, manifestly, there is no incompatibility. When incompatibility is noticed, it may be corrected on its own initiative, providing the necessary replacements, as provided for the appointment of defense counsel.

The accused person may not be defended simultaneously by more than two lawyers during the trial hearings or in the same act.

When two or more defense counsel intervene, notification served on one of them shall suffice with respect to both, and the substitution of one for the other shall not alter the proceedings or the time limits. Both, nevertheless, shall retain their autonomous powers, except when the law expressly imposes a division of functions.

Each defense counsel may designate a substitute to intervene, with the consent of the accused person, if the principal counsel has any impediment.

When the accused person is deprived of liberty, any person may assign a defense counsel to him, in writing, before the police or the authorities in charge of his custody, or verbally before the Public Prosecutor's Office or the judge, which assignment shall be made known to him immediately. In case of urgency, this defense counsel shall begin to act provisionally.

The accused person may subsequently designate another defense counsel, replacing the previous one who is already intervening in the procedure, but the latter may not abandon the defense until the new defense counsel accepts the office.

The same right exists to replace the defense counsel appointed ex officio by the court with one proposed by the accused person.

The defense counsel shall heed the instructions of the person he defends, but in the exercise of his office he shall act under his responsibility, seeking to conduct the defense by legal means.

Both the accused person and their defense counsel may interchangeably request, propose, or intervene in the proceedings, without limitation, in the manner prescribed by law.

Defense counsel may resign from the exercise of the technical defense, in which case the Public Prosecutor's Office or the competent tribunal shall set a time limit for the accused person to replace him, upon expiry of which he shall be replaced by a defense counsel appointed on its own initiative by the tribunal. The resigning person may not abandon the defense until his substitute intervenes. Resignation shall not be permitted during the trial or the hearings.

If the defense counsel for the accused person without justified cause abandons the defense or leaves the accused person without technical assistance, without prejudice to the liabilities thereby incurred, the substitute shall intervene; upon the latter's inability, he shall be immediately replaced by an ex officio-appointed defense counsel and they may not be appointed again in the procedure. The decision shall be communicated to the accused person and he shall be instructed on his right to choose another trusted defense counsel.

Where the abandonment by the principal or the substitute occurs shortly before or during the trial, its commencement may be deferred or the already-commenced trial suspended, for a maximum of five consecutive calendar days, if so requested by the new defense counsel; it may not be deferred or suspended again on the same grounds. In this case, the intervention of the defense counsel who had been appointed ex officio shall continue, even if another trusted defense counsel later intervenes.

Defense counsel is prohibited from disclosing circumstances adverse to the person he defends, however he may have learned of them.

Abandonment of the defense shall constitute a serious offense and shall oblige whoever incurs it to pay the costs caused by the replacement, without prejudice to the corresponding sanctions.

The abandonment shall be communicated immediately to the Tribunal of Honor of the Colegio de Abogados y Notarios de Guatemala.

In the trial for a crime of private action at the instance of a party, the accused person may be represented by defense counsel with special power for the case. Nevertheless, the tribunal may require the personal appearance of the accused person.