Título VI. Garantías constitucionales y defensa del orden constitucional

Whoever is unlawfully imprisoned, detained or otherwise restrained from the enjoyment of his individual liberty, threatened with the loss thereof, or suffers abuses, even when his imprisonment or detention is founded in law, has the right to request his immediate exhibition before the tribunals of justice, whether in order that his liberty be restored or guaranteed, the abuses be made to cease or the coercion to which he is subject be ended.

If the tribunal decrees the liberty of the unlawfully confined person, such person shall be freed in the same act and place.

When so requested or the judge or tribunal deems it pertinent, the requested exhibition shall be carried out in the place where the detained person is found, without prior notice or notification.

The habeas corpus (exhibición personal) of the detained person in whose favor it has been requested is inescapable.

The authorities who order the concealment of the detained person or who refuse to present such person to the respective tribunal, or who in any manner evade this guarantee, as well as the executing agents, shall incur the crime of kidnapping and shall be punished in accordance with the law.

If as a result of the proceedings carried out the person in whose favor the exhibition was filed is not located, the tribunal, on its own initiative, shall immediately order the investigation of the case until it is fully clarified.

Constitutional relief (amparo) is instituted for the purpose of protecting persons against threats of violations of their rights or to restore the full force thereof when the violation has occurred. There is no area that is not susceptible to constitutional relief (amparo), and it shall proceed whenever acts, decisions, provisions or laws of authority implicitly entail a threat, restriction or violation of the rights guaranteed by the Constitution and the laws.

In specific cases, in any proceedings of any competence or jurisdiction, in any instance and in cassation and until before judgment is rendered, the parties may raise, as an action, exception or incident, the total or partial unconstitutionality of a law. The tribunal shall rule on the matter.

Actions against laws, regulations or provisions of a general character that contain a partial or total vice of unconstitutionality shall be filed directly before the Constitutional Tribunal or Court.

The Constitutional Court is a permanent tribunal of exclusive jurisdiction, whose essential function is the defense of the constitutional order; it acts as a collegiate tribunal with independence from the other organs of the State and exercises specific functions assigned to it by the Constitution and the law on the matter.

The economic independence of the Constitutional Court shall be guaranteed with a percentage of the revenues corresponding to the Judicial Branch.

The Constitutional Court is composed of five titular magistrates, each of whom shall have their respective alternate. When it hears unconstitutionality matters against the Supreme Court of Justice, the Congress of the Republic, the President or the Vice President of the Republic, the number of its members shall be raised to seven, the other two magistrates being chosen by lot from among the alternates.

The magistrates shall serve in their functions for five years and shall be designated in the following manner:

a)One magistrate by the plenary of the Supreme Court of Justice;

b)One magistrate by the plenary of the Congress of the Republic;

c)One magistrate by the President of the Republic in Council of Ministers;

d)One magistrate by the Higher University Council of the University of San Carlos of Guatemala; and

e)One magistrate by the Assembly of the Bar Association.

Simultaneously with the designation of the titular magistrate, that of the respective alternate shall be made, before the Congress of the Republic.

The installation of the Constitutional Court shall become effective ninety days after that of the Congress of the Republic.

To be a magistrate of the Constitutional Court, the following requirements must be met:

a)Be a Guatemalan of origin;

b)Be a registered attorney;

c)Be of recognized honorability; and

d)Have at least fifteen years since professional graduation. The magistrates of the Constitutional Court shall enjoy the same prerogatives and immunities as the magistrates of the Supreme Court of Justice.

The Presidency of the Constitutional Court shall be held by the same titular magistrates who comprise it, on a rotating basis, for a period of one year, beginning with the oldest and continuing in descending order of age.

The Constitutional Court has the following functions:

a)To hear in sole instance challenges filed against laws or provisions of general character, challenged partially or totally on grounds of unconstitutionality;

b)To hear in sole instance as an extraordinary constitutional relief (amparo) tribunal in constitutional relief (amparo) actions filed against the Congress of the Republic, the Supreme Court of Justice, the President and the Vice President of the Republic;

c)To hear on appeal all constitutional relief (amparo) actions filed before any of the tribunals of justice. If the appeal is against a constitutional relief (amparo) decision of the Supreme Court of Justice, the Constitutional Court shall be enlarged with two members in the manner provided in Article 268;

d)To hear on appeal all challenges against laws objected to on grounds of unconstitutionality in concrete cases, in any trial, in cassation, or in the cases contemplated by the law on the matter;

e)To issue an opinion on the constitutionality of treaties, agreements and bill, at the request of any of the organs of the State;

f)To hear and decide matters relating to any conflict of jurisdiction in matters of constitutionality;

g)To compile constitutional doctrine and principles established in the course of constitutional relief (amparo) and unconstitutionality decisions on laws, keeping up to date the bulletin or jurisprudential gazette;

h)To issue an opinion on the unconstitutionality of laws vetoed by the Executive alleging unconstitutionality; and

i)To act, opine, issue opinions or hear those matters within its jurisdiction established in the Constitution of the Republic.

The Congress of the Republic shall designate a Human Rights Commission formed by one deputy for each political party represented in the corresponding period. This commission shall propose to Congress three candidates for the election of an Ombudsman, who must meet the qualifications of the magistrates of the Supreme Court of Justice and shall enjoy the same immunities and prerogatives as the deputies to Congress. The law shall regulate the powers of the Commission and of the Human Rights Ombudsman referred to in this article.

The Human Rights Ombudsman is a commissioner of the Congress of the Republic for the defense of the human rights guaranteed by the Constitution. He shall have powers to supervise the administration; he shall hold office for a period of five years, and shall render an annual report to the plenary of the Congress, with which he shall liaise through the Human Rights Commission.

The Human Rights Ombudsman has the following powers:

a)To promote the good functioning and the expediting of governmental administrative management, in matters of human rights;

b)To investigate and report administrative conduct harmful to the interests of persons;

c)To investigate all kinds of complaints submitted to him by any person, concerning violations of human rights;

d)To recommend privately or publicly to public officials the modification of an administrative conduct that has been objected to;

e)To issue public censure for acts or conduct against constitutional rights;

f)To promote judicial or administrative actions or remedies, in cases where appropriate; and

g)Such other functions and powers as may be assigned to him by law.

The Human Rights Ombudsman, on its own initiative or at the request of a party, shall act with due diligence so that, during the state of exception, fundamental rights whose force has not been expressly restricted are guaranteed in full. For the performance of his functions all days and hours are business days and hours.

A constitutional law shall develop matters relating to constitutional relief (amparo), habeas corpus (exhibición personal) and the constitutionality of laws.