Título Tres. Exhibición personal

Whoever is unlawfully imprisoned, detained or otherwise restrained in the enjoyment of their individual liberty, threatened with the loss thereof, or suffers mistreatment, even when their imprisonment or detention is founded in law, has the right to request their immediate exhibition before the tribunals of justice, whether for the purpose of having their liberty restored or guaranteed, having the mistreatment cease, or ending the coercion to which they are subject.

. The jurisdiction of the tribunals for habeas corpus (exhibición personal) is governed by that of the informant or if he has transferred it to another, where he previously enjoyed the right of antejuicio, the constitutional relief (amparo) tribunal, however, in this matter, the jurisdiction corresponding to the Constitutional Court shall be exercised by the Supreme Court of Justice.

Specific jurisdiction is, without prejudice that habeas corpus (exhibición personal) may be initiated before any tribunal, which shall issue on a preventive basis the urgent orders that the case requires, referring without delay cognizance of the matter with a report of what was done to the competent tribunal.

Habeas corpus (exhibición personal) may be requested in writing, by telephone or verbally, by the aggrieved person or by any other person, without the need to prove any representation and without subjection to formalities of any kind.

Every tribunal of justice that comes to have knowledge in any manner that any person is in the situation contemplated in Article 82, confined or in mere custody and it is feared that their whereabouts may be uncertain, shall be obligated to initiate and promote on its own initiative habeas corpus (exhibición personal).

The warden, head, subordinate or executing officer of the establishment or place where a person is detained, imprisoned or deprived of his liberty, who has knowledge of a fact giving rise to habeas corpus (exhibición personal), shall immediately report it to any tribunal competent to hear habeas corpus (exhibición personal), under penalty of a fine of fifty to five hundred quetzales, without prejudice to any other legal sanctions.

Immediately upon receiving the request or obtaining knowledge of an act giving rise to habeas corpus (exhibición personal), the tribunal, in the name of the Republic of Guatemala and without any delay, shall issue an exhibition order, setting a time for such purpose and ordering the authority, public official, employee or allegedly responsible person to present the aggrieved person, attach the original or a copy of the proceedings or background records, if any, and render a detailed report on the facts giving rise thereto, containing at least the following:

a)Who ordered the detention or abuse and who executed it, indicating the date and circumstances of the act;

b)Whether the detainee has been under the immediate custody of another, in which case the name of the latter shall be stated, as well as the place, time and reason for the transfer; and

c)The order that gave rise to the detention.

The time limit within which the presentation of the aggrieved person must be made shall never exceed twenty-four hours from the petition or complaint.

When the tribunal obtains knowledge of the facts to which Article 82 refers, it shall immediately initiate the corresponding proceedings, proceeding without delay to the place where the aggrieved person is; and if the offended person resides outside the perimeter or municipality of the tribunal hearing the matter, an executing judge shall be appointed who shall proceed pursuant to the following article.

In case of failure to proceed as ordered in the preceding paragraph, the members of the tribunal hearing the related facts shall be punished as accomplices in the crime of kidnapping.

When the aggrieved person is outside the municipality where the tribunal hearing the exhibition resides, in the absence of an executing judge, compliance with the exhibition order may be commissioned to any other authority or person whose qualifications guarantee fulfillment of its task.

In such cases the proceedings shall be transmitted to the executor by the fastest means, proceeding immediately to carry out the mandate of the tribunal. For this purpose, the executor shall go without delay to the place where the person in whose custody the aggrieved person is found is located, shall notify him of the order of the tribunal, shall require him to immediately exhibit the offended person to him, as well as any records that may exist or a report on his conduct, and shall order him to cause to cease, where applicable, the restrictions or vexations to which the offended person is subjected. The executor shall report promptly thereafter on the result of his commission.

Upon expiration of the term fixed for the exhibition of the person and return of the order, if the authority or public official to whom notice was served has not complied, the tribunal shall issue an order of arrest against the noncompliant person and shall subject him to prosecution, ordering at the same time the liberty of the prisoner if appropriate in accordance with the law, without prejudice to the executing judge appearing personally at the detention center, searching in all places for the aggrieved person.

In this case, the disobedience of the noncompliant person shall be made of record and the executor shall give notice by telegraph or by telephone if possible.

If the defaulting authority referred to in the article is obligated, immediately and under its strict responsibility, to initiate the preliminary hearing proceedings before the corresponding body.

There is an obligation to present the person even when held in custody by virtue of an order of a competent judicial authority as a consequence of a procedure in due form and, in such case, the return shall be made by remitting the record.

When the exhibition has been requested on behalf of kidnapped or disappeared persons, the judge who ordered the exhibition must appear in person to search for them in the place where they are allegedly located, whether detention centers, jails or any other indicated, suggested or suspected place where they might be found.

When so requested or the tribunal deems it pertinent, the requested exhibition shall be carried out at the place where the detainee is located, without prior notice or notification to any person.

If from the study of the report and background it results that the detention or imprisonment is illegal, the liberty of the affected person shall be decreed and such person shall be set free in the same act and place.

At the request of the affected person or the petitioner, the Judge shall order the authority to deliver the detained person to the person designated by the same affected person or petitioner and in a safe place, this being recorded in the record.

The tribunal may, for the same hearing in which the exhibition has been decreed, order the appearance of the witnesses or experts it deems necessary to clarify the facts, as well as gather any other type of information.

At the exhibition hearing, a record shall be drawn up in which all incidents occurring therein shall be recorded. Thereafter, a decision declaring the admissibility or inadmissibility of the exhibition shall be issued.

Costs shall be awarded against the petitioner only when it is clearly established that the petition was malicious or reckless, or that it was filed for the purpose of obstructing the administration of justice.

An award of costs is mandatory when the production (exhibición) of documents is granted, and the tribunal shall indicate who is liable for its payment.

The office of executor shall be honorary.

All authorities and inhabitants of the Republic shall accord to the executor, for as long as the performance of his office lasts, the preeminences and respect due. Furthermore, during this time he shall enjoy personal immunity and shall not be detained for any cause, except for a crime in flagrante.

When the executor appears at the detention center to carry out the ordered habeas corpus (exhibición personal), and the aggrieved person is not found or presented, he shall personally search for him in all places of that detention center, without prejudice to continuing to search for him wherever he may be found.

While the exhibition proceedings are being carried out, the executor shall take, within the law, the security measures that may be necessary against the detainee to prevent his escape.

The tribunals and the executor, as applicable, may request the assistance of the public force for compliance with their decisions, and if the requested authority does not provide it immediately, it shall incur liability as prescribed by the Penal Code.

Telegraphic, postal and telephone messages relating to habeas corpus (exhibición personal) shall be transmitted with priority and free of charge, with record of the time of deposit.

The heads of the respective offices shall be liable for failure to comply with this provision under penalty of a fine of ten to one hundred quetzales.

Once the facts that gave rise to the request for exhibition have been established, the same tribunal, or where applicable the executing officer, shall do everything possible to exhaust the inquiry in order to ascertain who are directly responsible, which shall be stated in the decision issued by the tribunal.

The pertinent matter shall be certified to the corresponding tribunal for the prosecution of those responsible.

The authorities who of human rights the treaties prevail and who order the concealment of the detainee or refuse to present him to the respective tribunal, or who in any other manner evade the guarantee of habeas corpus (exhibición personal), as well as the executing agents, shall incur the crime of kidnapping, shall be removed from their offices and shall be sanctioned in accordance with the law.

If, as a result of the proceedings carried out, there are indications that the person in whose favor the habeas corpus (exhibición personal) was filed might have disappeared, the tribunal shall immediately order the search in the case.

The police authorities are obligated to inform the tribunal, the Human Rights Ombudsman and the interested parties about the investigations conducted, which must be continuous until reliable information is obtained concerning the whereabouts of the disappeared person; in turn, the habeas corpus (exhibición personal) tribunal shall send a report on the proceedings and on any new development that may arise to the Supreme Court of Justice.

The habeas corpus (exhibición personal) proceedings may not be dismissed nor withdrawn while the detained, aggrieved or disappeared person has not been located.

If the public official hearing a habeas corpus (exhibición personal) is recused, the proceedings thereof shall not be suspended, but the public official must continue to act, under his liability, in all that is mandated by law or that favors the aggrieved person, while the case is transferred to another competent tribunal, or the habeas corpus proceedings are exhausted in the same tribunal.

The proceedings of a habeas corpus (exhibición personal) are not extinguished by the decision declaring it well-founded.

When a habeas corpus (exhibición personal) is declared well-founded, the tribunals shall order that the investigation continue in order to determine liability with respect to the challenged acts.

The provisions relating to constitutional relief (amparo) shall be applicable to habeas corpus (exhibición personal) insofar as they are pertinent and subject to the prudent judgment and discretion of the tribunals of justice.