Capítulo I. Extinción de dominio

The provisions of this Law are of public order and social interest.

This Law is intended to regulate:

a)The identification, location, recovery, repatriation of the property and the extinction of the rights relating to ownership thereof, as well as of the gains, fruits, products, yields or exchanges of illicit or criminal origin or source, in favor of the State;

b)The exclusive procedure for the effective compliance with this Law;

c)The jurisdiction and powers of the respective authorities for the execution of this Law;

d)The obligations of individual or legal persons engaged in the practice of a profession or activities susceptible to being used for the transfer, use, concealment and circulation of the property resulting from illicit or criminal activities; and,

e)The legal means that allow the intervention of persons who consider themselves affected by the application of this Law.

For the application of this Law, the following definitions shall govern:

a)Illicit or criminal activities: The actions or omissions defined as crimes, committed by common or organized crime, which shall give rise to the application of this Law, shall be understood as illicit or criminal activities, as follows:

a.1 International transit; sowing and cultivation; manufacture or transformation; unlawful commerce, trafficking and storage; promotion and encouragement; facilitation of means; unlawful transactions and investments; criminal associations; procurement of impunity or evasion; promotion or encouragement and personal concealment, contained in Decree Number 48-92 of the Congress of the Republic, Law Against Narcoactivity.

a.2 Money laundering or other assets, contained in Decree Number 67-2001 of the Congress of the Republic, Law Against Money Laundering or Other Assets.

a.3 The crimes contained in Decree Number 95-98 of the Congress of the Republic, Migration Law and related crimes.

a.4 Financing of terrorism and smuggling of money, contained in the Law to Prevent and Punish the Financing of Terrorism, Decree Number 58-2005 of the Congress of the Republic.

a.5 Embezzlement, embezzlement by removal, misappropriation, unlawful exaction by a public official, fraud, collusion, prevarication, passive bribery, active bribery, transnational active bribery, transnational passive bribery, escape, cooperation in escape, negligent escape, unlawful collection of commissions, illicit enrichment, illicit enrichment of private individuals, use of front men, unlawful exactions, improper collection, misuse of information, abuse of authority, influence peddling, obstruction of criminal prosecution, unlawful representation, delay of justice, denial of justice, murder when committed for price, reward, promise or profit, kidnapping or abduction, fraud when the aggrieved party is the State, fraud through accounting information when the aggrieved party is the State, trafficking in persons, extortion, terrorism, financial intermediation, fraudulent bankruptcy, manufacture of counterfeit currency, alteration of currency, introduction of false or altered currency, contained in Decree Number 17-73 of the Congress of the Republic, Penal Code and its amendments.

a.6 Customs fraud and customs smuggling, contained in Decree Number 58-90 of the Congress of the Republic, Law Against Customs Fraud and Customs Smuggling and its amendments.

a.7 Conspiracy, unlawful association; unlawful association of armed persons; training for unlawful activities; dealing in vehicles and similar items stolen abroad or in the national territory; intimidating exactions; extortionate obstruction of traffic and obstruction of justice, contained in Decree Number 21-2006 of the Congress of the Republic, Law Against Organized Crime.

a.8 Adulteration of medicines, production of falsified medicines, falsified pharmaceutical products, medical devices and falsified surgical medical material; distribution and commercialization of falsified medicines, falsified pharmaceutical products, medical devices and falsified surgical medical material, clandestine establishments or laboratories.

a.8) Disclosure of confidential or reserved information, contained in Decree Number 57-2008, Law on Access to Public Information.

b)Property: All those susceptible to economic valuation, whether movable or immovable, fungible or non-fungible, tangible or intangible, shares, titles and securities, any principal or accessory real right. Likewise, all fruits, gains, products, yields or exchanges of such property shall also be such.

c)Abandoned property: All property so declared in accordance with this Law.

d)Extinction of domain: The loss in favor of the State of any right over the property mentioned in subparagraph (b) of this article, which fall within the grounds stipulated in this Law, whatever their nature and class, without consideration or compensation of any nature for its holder or any person who holds or acts as such.

e)Funds derived from the administration of justice: Funds derived from the administration of justice are monies subject to the penalty of forfeiture in a final criminal judgment, in accordance with the provisions of this Law and the corresponding criminal laws. Extinction of domain declared by the competent tribunals shall not be considered a penalty and extinguished property shall not be considered funds derived from the administration of justice, and shall be allocated in accordance with the provisions of this Law. In any circumstance, monies or property extinguished or subject to extinction of domain shall be considered funds derived from or originating in illicit or criminal activities or in the acts, conduct, businesses, fruits or contracts from which they derive or which gave rise to them and subject to this Law.

For the declaration of extinction of domain and the interpretation of the provisions set forth, the principles established in this Law shall be taken into account.

For the observance and application of this Law, the following principles shall govern:

rights, in particular, to prove through the means

a)Nullity Ab Initio. It shall be understood that the acquisition or disposition of property or the formation of patrimony of illicit or criminal origin, knowing of such character or when it should reasonably be presumed, constitutes a juridical act contrary to public order and to express prohibitory laws or have been constituted in fraud of the law. Acts and contracts relating to such transactions shall in no case constitute just title and are void ab initio.

Knowledge or reasonable presumption regarding the illicit or criminal origin of the property referred to in the preceding paragraph may be inferred from the indicia or the objective circumstances of the case.

b)Prevalence. The provisions contained in this Law shall be applied and interpreted preferentially over those contained in any other law.

The following are grounds for an action for extinction of domain:

a)When the property at issue derives directly or indirectly from an unlawful or criminal activity carried out in national territory or abroad.

b)When there is a patrimonial increase of any person, individual or juridical, directly or indirectly related to a person investigated or subjected to an action for extinction of domain, by virtue of the unlawful or criminal activities provided for in this Law, and there is reasonable information that said increase originates in or derives from unlawful or criminal activities prior to the action for extinction of domain, or from persons who may have profited or benefited from the property, fruits, products, gains, yields or exchanges originating in or derived from unlawful or criminal activities, at any time, without sufficiently and reliably demonstrating the lawful origin thereof.

c)When the property or businesses at issue have been used as a means or instrument for the commission of unlawful or criminal activities, correspond to the object of the crime, or it can be preponderantly demonstrated that they will be used for the commission of a criminal act. In the case of property or businesses corresponding to the object of the crime, it shall be understood that they are those that do not belong to the victim or the aggrieved party, or that must be restored to such person.

d)When the property, fruits, products or gains at issue derive from the alienation or exchange of others that, knowingly or where it should reasonably have been presumed, originate, directly or indirectly, in unlawful or criminal activities.

e)When the property, fruits, products, gains, yields or exchanges at issue have been affected within criminal proceedings and the origin of such property, its unlawful use or destination, has not been subject to investigation or, having been so, no final decision has been taken with respect thereto for any reason.

f)When in criminal proceedings there is sufficient and probable information that the property, fruits, products, gains, yields or exchanges at issue derive from unlawful or criminal activities:

f.1) The archiving or dismissal of the case when no further action can be taken, failure to appear, extinction of prosecution or of criminal liability, dismissal of proceedings, provisional closure or opportunity criterion has been judicially declared.

f.2) The accused cannot be identified.

f.3) The accused, convicted person or person under prosecution, in case of flight, has evaded criminal prosecution or the penalty.

g)When the rights at issue relate to property or businesses of lawful origin but which have been used or intended to conceal, cover up, incorporate or commingle property of unlawful or criminal origin.

h)When the property, resources, objects and means of transport used for the commission of a criminal act or unlawful activity have been abandoned, provided they do not belong to a third party in good faith without fault or sham transaction.

i)In the cases of presumption provided for in Article 46, Presumption, of the Law Against Drug Trafficking, Decree Number 48-92 of the Congress of the Republic and its reforms.

j)When dealing with property of a hereditary succession, if the decedent acquired said property through unlawful or criminal activities.

k)In the cases of omission or falsity in the sworn statement provided for in Article 25, Statement, of the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic and its reforms.

l)By reason of a criminal conviction rendered abroad for the crime of drug trafficking, money laundering, illicit enrichment or organized crime, when property or proceeds exist in the national territory and the competent judicial authority of the country in question has not timely claimed them, they shall be declared in favor of the State of Guatemala. A declaration in favor of a foreign State shall proceed when so requested by a competent authority of another country or an international organization, pursuant to Article 8 of this Law.

In any of the grounds listed in this Article, the affected party shall be empowered to exercise its suitable and sufficient [means], the grounds for its opposition, to establish standing for its actions and to prove the interest with which it acts.