Capítulo IV. Competencia y procedimiento

The Prosecutor General, directly or through the designated prosecutorial agents, is responsible for directing and conducting the investigation to establish and substantiate the concurrence of one or more of the grounds for extinction of domain, and for initiating and promoting the corresponding action. In accordance with their constitutional and legal authority, they may form special units for the investigation and the exercise of the extinction-of-domain action or assign it to any of the existing sections. Likewise, the Minister of Governance shall form the special units of the National Civil Police that shall cooperate and coordinate in the investigation with the Public Prosecutor's Office.

Regardless of the amount at issue, the competent courts, as determined by the Supreme Court of Justice, shall process and issue the decision declaring the extinction of domain.

Judicial acts and proceedings previously performed or authorized by the justices of the peace, first-instance, municipal or departmental judges shall retain their full validity, provided they are not contrary to the provisions of this Law.

The action for extinction of ownership shall be initiated and exercised on its own initiative by the Prosecutor General or the designated fiscal agent, when he deems that the investigation provides a serious and reasonable basis regarding the concurrence of one or more of the grounds contained in Article 4 of this Law, before the competent tribunals, as determined by the Court

With the exception of the procedure stipulated in Article 25 of this Law, in cases of omission or falsity in the sworn declaration provided for in Article 25, Declaration, of the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic, the Public Prosecutor's Office shall initiate the action for extinction of domain without further proceedings and the competent judge shall issue the decision on whether or not the definitive loss in favor of the State of the seized money or documents is appropriate, after having given the opportunity within a time limit of eight (8) days, counted from the seizure, to any person claiming a right over such money or documents to prove its lawful origin. The unlawful origin may be inferred from the indicia and objective circumstances of the case.

When such lawful origin is not proven, or the interested person has not appeared within that time limit, the judge, based on the evidence provided by the Public Prosecutor's Office, shall render the corresponding judgment and shall declare the extinction of domain without further proceedings. Against such judgment only the appeal regulated in Article 25 of this Law shall lie.

Should the declaration of extinction of domain not be appropriate, within a time limit of no more than three (3) days from issuance of the decision and without prior notification, the judge, under his or her strict liability, shall certify what is pertinent to the Superintendency of Tax Administration, for such legal tax effects as may apply.

In no case shall the action for extinction of domain preclude investigation for the crime of money laundering or other assets, or for any other crime.

The Special Verification Intendancy of the Superintendency of Banks, by reason of its specialty in the prevention of money laundering or other assets and financing of terrorism, shall communicate, by such means as it deems pertinent, to the competent prosecutor's office of the Public Prosecutor's Office, those forms, modalities or techniques susceptible to being used to launder money or finance terrorism in accordance with the reports issued by international bodies on the matter. Likewise, it shall inform the Public Prosecutor's Office in a broad and substantiated manner, when in the course of its activities and legal functions, it has reasonable suspicions of financial transactions that warrant initiation of an investigation by the latter and, where appropriate, initiation of proceedings for an action of extinction of domain, and at the same time, assist in the corresponding investigation.

It corresponds to the Prosecutor General or the designated prosecutorial agent to hear the action for extinction of ownership, for which purposes he shall conduct, for as long as necessary, the investigation on its own initiative or on the basis of information furnished to him through any reliable channel, for the purpose of gathering the evidence necessary to support the petition for extinction of ownership, property in respect of which the action could be initiated in accordance with the grounds established in Article 4 of this Law.

In order to prove the facts and circumstances pertaining to the exercise of the action for extinction of ownership, the Prosecutor General or the designated prosecutorial agent may resort to any useful and pertinent means or method of investigation, provided that they do not suppress the rights and guarantees provided for in the Political Constitution of the Republic of Guatemala, and may avail themselves of the assistance of the members of the Public Prosecutor's Office and the National Civil Police.

For the purposes of this Law, the competent judges shall support the investigative activities of the Public Prosecutor's Office, when it so requests, or when judicial authorization is necessary.

In the development of the investigation phase and at any other stage, under express warning of prosecution and sanction for the crime of obstruction of justice, every employee, servant or public official and natural or juridical persons, public or private, are obligated to provide, forthwith, the information or the documents requested by the Prosecutor General or the designated prosecutorial agent, without need for a prior judicial order, except where military or diplomatic matters of national security are involved, or data furnished by private individuals under guarantee of confidentiality, in accordance with the law.

The persons referred to in the preceding paragraph shall provide all documentation and information in their possession or indicate the place where it may be found, within a time limit of no more than forty-eight (48) hours, without prejudice to the civil, criminal and administrative liabilities they may incur.

When those obligated to provide the documentation or information are justifiably unable to do so within the time limit stipulated by the Public Prosecutor's Office, they may request an extension of forty-eight (48) additional hours, with due advance notice, explaining the reasons. Such extension shall be decided before the originally indicated time limit expires.

In the event that the military or diplomatic secret of national security or the confidentiality of the information is invoked, it may not be denied by the corresponding authority and it shall be delivered to the Prosecutor General or to the designated fiscal agent, who shall proceed to its proper packaging, and, under his or her custody, it shall be presented immediately and directly to the competent judge to proceed to its examination and assessment in the same manner as stipulated in Article 244, Documents and Elements of Conviction, of the Code of Criminal Procedure, Decree Number 51-92 of the Congress of the Republic. Said examination shall be carried out within the forty-eight (48) hours following receipt, at the seat of the tribunal.

The employee, public official or public servant who falsely or maliciously invokes the confidentiality of the information or the military or diplomatic secret of national security, or for dilatory purposes, shall be prosecuted and sanctioned for the crime of obstruction of justice.

The individual or legal persons, public or private, mentioned in Article 17 of this Law are obligated to transmit all information relating to the identity, residence and business activities of the persons with whom they conduct business or enter into contracts for property or professional services, including a copy of their personal photographic identity documents, which must be clearly legible and visible.

For the application of this Law, all persons referred to in Articles 17 and 20 of this Law, and the authorities that learn of the matter by any means, remain subject both to confidentiality and to the exemption from liability provided for in Articles 28 and 31, respectively, of the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic.

Natural or juridical persons who effectively contribute to obtaining evidence for the declaration of forfeiture of ownership, or provide such evidence, shall receive remuneration of up to five percent (5%) of the property declared in forfeiture of ownership.

In the case of immovable property, such remuneration shall be based on the cadastral value registered in the Directorate of Cadastre and Appraisal of Immovable Property of the Ministry of Public Finance.

In the case of movable property and other property, such remuneration shall be made in accordance with the appraisal to be carried out by the National Secretariat for the Administration of Property in Forfeiture of Ownership, pursuant to its regulation.

The remuneration referred to in this article shall not be applicable to employees, servants or public officials in the exercise of or on the occasion of their functions, nor to those persons who have been declared effective collaborators with justice or who have been granted the opportunity criterion.

In all cases, the Public Prosecutor's Office shall request that the judge declare recognition of the remuneration in the decision, so that the National Secretariat for the Administration of Property in Forfeiture of Ownership proceeds to payment, with the privative funds contained in the institution's budget.

The Superintendency of Tax Administration, the Superintendency of Banks, the General Property Register, the Commercial Register, the Intellectual Property Register, the Register of Movable Guarantees, the municipalities and any other public entity shall provide their immediate collaboration free of charge to the Public Prosecutor's Office when reports are requested from them for the investigation of the matters regulated in this Law, without the need for a judicial order. For such purposes, the listed institutions may enter into agreements with the Prosecutor General and Head of the Public Prosecutor's Office for collaboration and assistance in the investigation, as well as for direct access in immediate or automatic form to the information they hold by virtue of their legal powers, whatever its medium.

During the investigation phase, at the request of the Prosecutor General or the designated prosecutorial agent, the competent judge may order, with respect to the property that may be subject to the asset forfeiture action, when the necessary conditions are met, the pertinent interim protective measures, which shall include: the suspension of ownership or accessory rights, in whatever form; the registration of the asset forfeiture action; the attachment, intervention, immobilization or seizure of the property, of funds deposited in accounts or safe-deposit boxes of the banking or financial system and of funds that may be deposited subsequently, of securities and of their yields, or issuance of the order not to pay them when their seizure or confiscation is impossible, as well as any other interim protective measure deemed pertinent.

The Prosecutor General or the designated prosecutorial agent shall ensure that the interim protective measures ordered by the judge are immediately communicated to whom it may concern and that the respective registrations have been effectively completed in the corresponding registries, files, public and private entities or institutions. Any noncompliance, delay or failure to observe judicial orders shall be punished in accordance with special criminal laws and administrative and disciplinary regulations.

In urgent cases, the interim protective measures may be ordered by the Prosecutor General or the designated prosecutorial agent, who shall proceed to inform the judge within the following twenty-four (24) hours, so that the latter may confirm or annul them, should they be legally inadmissible, on the basis of the information provided by the designated prosecutorial agent and the provisions of this Law. The judge shall decide at the same hearing, with personal and immediate notification to the designated prosecutorial agent, delivering to him, when he so requires, the corresponding official letter or communication, for the purpose of directly conveying the notices to whom it may concern.

The interim protective measures may only be denied if, in the judgment of the tribunal, they are manifestly inadmissible, which must be reasoned in the decision on the merits.

Against the decisions ordering interim protective measures, an appeal lies for failure to observe or misapplication of this Law. It shall be filed solely by whoever has a direct interest in the matter before the appellate chamber, within a time limit of forty-eight (48) hours, and they shall be examined and decided without debate within a time limit of no more than twenty-four (24) hours, on the basis of the appeal brief and the oral intervention of the prosecutorial agent and the interested party. The same procedure and time limits shall apply to appeals against decisions rejecting the interim protective measures.

The interim protective measures may not be lifted while the appeal filed against the final decision on the asset forfeiture action, or against the decision ordering the interim protective measure, is pending, nor shall they suspend the asset forfeiture proceedings.

At the request of the Public Prosecutor's Office, the judge shall authorize the advance sale of the property subject to interim protective measures, when it is at risk of perishing, deteriorating, depreciating or losing value, or whose preservation entails losses or expenses disproportionate to its value or administration. The same shall apply in the case of livestock or other animals.

Prior to ruling, the judge may consider hearing those who claim real or personal rights over such property, and shall weigh that the decision does not prejudice such rights, prior to the final decision on the extinction of ownership. If those claiming real or personal rights fail to appear, the advance sale shall proceed without further formality.

Fungible or perishable property that is in good condition and that may be lost or suffer deterioration over time shall be alienated to the highest bidder, or under market conditions where applicable, by the National Secretariat for the Administration of Property in Extinction of Ownership, without need for prior judicial authorization. Once the alienation has been carried out, the actions taken shall be communicated to the competent judicial authority for inclusion in the judicial file. In this case, if its sale is not possible, the products may be donated to public charitable institutions.

In all cases, the proceeds of the sale or auction of the property shall be deposited in a specific account, and such funds shall await the competent jurisdictional body deciding as appropriate in matters of extinction of ownership.

During the investigation phase and throughout the procedure, private witnesses, as well as agents of the National Civil Police who participate as investigators or in special investigative methods, or appear as witnesses within the scope of this Law, may protect their identity through the use of alphanumeric codes provided by the Prosecutor General or the designated prosecutor, who shall keep under their strict responsibility the true individualization and identity of such police agents or witnesses. During the proceedings they may be interrogated through means that allow their identity to be protected and guarantee their personal protection.

For the observance of this article, the legal provisions in force relating to effective collaboration, protected witnesses and undercover agents may be applied suppletorily.

The processing of the action for extinction of domain shall be carried out in accordance with the following rules:

1.If, upon conclusion of the investigation, there are serious grounds to initiate the action for extinction of domain, the Prosecutor General shall request from the Attorney General the delegation to him or to the fiscal agent proposed by him, for the exercise thereof. The Attorney General shall issue, within the twenty-four (24) hours following receipt of the request, the decision necessary to appoint and delegate to the fiscal agent the exercise of the action on behalf of the State. Said decision shall be notified, within the following twenty-four (24) hours, to the Prosecutor General and to the designated fiscal agent.

2.The action for extinction of domain shall be initiated by the Prosecutor General or the designated fiscal agent, within a time limit of no more than two (2) days, before a competent judge or tribunal, stating for such purposes:

a.The facts on which it bases its petition;

b.The description and identification of the property pursued, as well as the ground on which the extinction of domain is based;

c.The name, identification data and address of residence or business of the persons who could have an interest in the matter, or the reasons that render identification thereof impossible;

d.The offer of relevant evidence. When it concerns documentary evidence, and if applicable, the place or file where it is located shall be indicated, so that the competent judge or tribunal orders its referral to the fiscal agent of the case.

3.Within twenty-four (24) hours of filing of the petition for extinction of domain, the competent judge or tribunal hearing the same shall issue a decision admitting it for processing and informing the interested persons or those who could be affected, of the right afforded to them to appear at the oral trial and of the warning in case of failure to do so. The decision shall be notified to the Prosecutor General, to the designated fiscal agent and to the Attorney General, on the same day on which it was issued.

4.Every jurisdictional decision shall be deemed communicated at the time of the oral hearing in which it is issued, without need for any subsequent act. Summonses and calls to hearings may be made in the most expeditious manner, whether by telephone, fax, electronic mail or other means that facilitates and ensures the holding of the hearing.

5.In case of error or omission in the drafting and formalities in the petition for extinction of domain, the judge or president of the tribunal shall order them to be corrected, but may not suspend, interrupt or terminate the procedure. The designated fiscal agent shall correct the errors within twenty-four (24) hours following notification.

6.If it has not been done previously, the competent judge or tribunal shall order, in the same decision of admission for processing, the necessary interim protective measures to ensure execution of the judgment, which shall be ordered and executed before the decision is notified to the interested party.

7.Within three (3) days of issuance of the decision of admission for processing, the interested persons or those who could be affected shall be notified, at the residence or business address known for them, leaving the notification slip with whoever inhabits the residence or is in charge of the business, fully identifying them. In case no address is known, notification shall be made through the notice board of the tribunal and its publication shall be ordered in accordance with numeral 8 of this article. Said notifications shall have value and shall produce the corresponding legal effects, just as personal notification.

8.If notification cannot be effected for any reason, the notifier shall affix the slip at the indicated address, in a visible place of the related immovable property, recording such circumstance in a record and immediately informing the judge or tribunal hearing the case, who shall order in such case, by means of edict and succinctly, the necessary information regarding the identification and class of proceedings involved, identifying the related file. Publication shall be made in the official gazette and in one of the newspapers of greatest circulation in the country, twice, within a period not exceeding five (5) days.

9.Within two (2) days after the notification referred to in the preceding numerals, the judge or tribunal shall summon the parties, setting day and time for the hearing, which shall be held within a time limit of no more than ten (10) days counted from the decision. At said hearing they shall appear being able to orally state their opposition or means of defense, file defenses and propose all means of evidence. The failure to appear of one of the parties at the hearing shall result in a declaration of default, at the request of the Public Prosecutor's Office. In case default is declared, the judge or tribunal shall appoint a judicial defense counsel, from among the attorneys of the Institute of Criminal Public Defense, to assert any right during the proceedings and while the person declared in default does not appear.

10.The sole prior defense that may be filed [shall be resolved within] days counted from its receipt. It shall be resolved within the three (3) days following the holding of the hearing mentioned in the preceding numeral. Against the decision resolving the defense an appeal may be filed, which shall be processed and resolved in accordance with the fifth paragraph of Article 22 of this Law. The appeal shall not suspend the procedure for extinction of domain.

11.Once the prior defense is resolved or the hearing provided for in numeral 9 of this article is held, as applicable, the judge or tribunal shall open the proceedings to evidence for a time limit of thirty (30) days, exceptionally extendable for the term of distance or when without fault of the interested party the evidence requested in time could not have been taken. The offer, admissibility and taking of each means of evidence shall be carried out in accordance with the provisions for such matter in the Code of Criminal Procedure, Decree Number 51-92 of the Congress of the Republic. The evidence time limit shall be declared expired if the evidence offered by the parties has been taken or the time limit has elapsed without the parties having submitted their evidence.

12.At the first hearing, the Public Prosecutor's Office may expand its initial filing, for whose purposes the scheduled hearing shall be suspended, the judge or tribunal being able to extend it only once, rescheduling it within a time limit not exceeding eight (8) days and the parties shall thereby be deemed notified.

13.Once the evidence period has expired or concluded, the judge or tribunal shall set day and time for the closing hearing, which shall be verbally notified on the day of the last evidentiary act, which must be held within a time limit of no more than ten (10) days. At it, the parties shall present their conclusions in the following order: Public Prosecutor's Office, Attorney General and the other parties intervening in the proceedings.

14.Once the closing hearing is concluded, the judge or tribunal shall directly summon the parties to issue judgment within a time limit not exceeding ten (10) days, in which it must resolve the defenses, incidents, nullities, the declaration of extinction of domain and all other matters to be resolved in accordance with this Law. The assessment of the evidence shall be carried out in accordance with reasoned sound judicial discretion and the principle of preponderance of the evidence or balance of probabilities. The judgment shall be read at the same hearing and shall serve as notification for all parties.

15.Against the decision or judgment, only an appeal lies for non-observance, improper interpretation or erroneous application of this Law, which must be filed before the judge or tribunal that issued the same, within three (3) days following notification; it shall be admitted or rejected within a time limit of two (2) days; once admitted, it shall be forwarded no later than the day following the decision to the respective chamber, without need for notification. The appeal must be resolved within fifteen (15) days following the day on which the file reaches the appeals chamber.

16.The appeal shall not suspend any of the measures ordered by the competent judge or tribunal to guarantee the extinction of domain.

17.The appeals chamber shall summon the interested parties to appear at the oral hearing to present their arguments and conclusions, which shall be set within fifteen days following the day on which the file reached the chamber. The decision shall be issued at the same hearing in accordance with the rules of reasoned sound judicial discretion. If due to the hour and complexity of the matter it is not possible to issue judgment, a new oral hearing shall be set which must be held no later than within five (5) days following the first hearing, which shall be verbally informed to the parties at the same hearing and shall serve as notification for all.

The reading of the judgment shall serve as notification, with the pertinent legal effects. The interested parties shall receive at the same hearing a copy of the judgment.

18.In the judgment, the appeals chamber shall confirm, modify or annul the first-instance decision; however, it may not review again or assess the evidence, nor the facts that the judge or tribunal have declared proven.

19.The performance and completion of all notifications and publications provided for the procedure shall be carried out under the personal liability of the judge of the case or the president of the competent tribunal. The notifying officer shall give preference to these notifications over any other. Negligence or non-observance of the time limits for notification and publication shall be considered a very serious fault and sufficient cause for removal, independently of the corresponding civil and criminal liability.

20.In the processing of the appeal the same rules for notification of the first-instance procedure provided in this article shall govern, when pertinent.

Against what is resolved by the Chamber no appeal lies, not even cassation.

As an exception to the procedure provided for in the preceding article, the competent judge or tribunal shall declare the abandonment of the property and consequently the extinction of domain in favor of the State, ordering its transfer to the National Council for the Administration of Property in Extinction of Domain, when there are sufficient evidentiary elements for the purposes provided for in this Law, and;

1.Default is declared; the accused, defendant or convicted person has evaded criminal prosecution or the penalty; the accused cannot be identified and he has abandoned the property, resources, elements and means of transportation used in the commission of the unlawful act, and that,

2.Thirty (30) days have elapsed since the seizure or sequestration of the property, resources, elements and means of transportation used in the commission of the unlawful act. In this case, the provisions of numerals 7 and 8 of Article 25 of this Law, regarding notifications, shall be followed.

The unlawful origin of the abandoned property and the sufficiency of the evidence may be inferred from the indicia and objective circumstances of the case.

The time limits established for the procedure are of mandatory compliance; non-observance thereof by the corresponding authority shall be considered a very serious disciplinary offense, irrespective of any other liability that may result.

In cases in which the extinction of domain action is investigated or processed, the Prosecutor General, the designated prosecutor, the competent judge or tribunal shall not decide matters concerning the return of property until the decision or judgment on the extinction of domain action is issued. In all cases, any petition or incident submitted by interested parties for that purpose shall be dismissed outright.

If the interested parties interpose nullity, it shall be resolved in the first or second instance judgment, as applicable.

No nullity of prior pronouncement shall be admitted.

The sole grounds for nullity in the extinction of domain proceedings shall be the following:

1.Lack of notification, except in the cases of notification provided for in Article 25 and Article 26, numeral 2 of this Law.

2.Unjustified refusal to order relevant evidence or to take, without cause justifying it, timely offered evidence. Nullity, in this case, shall not proceed if, despite the defect, it is concluded that it would not have the effect of modifying the operative part.

During the investigation stage and until before the first hearing of the extinction of domain action proceedings, no defenses or motions may be filed.

For purposes of the application of this Law, in no case may consolidation of proceedings be requested, unless they are related extinction-of-domain proceedings, nor may a prejudicial question, obstacles, lis pendens or defenses and incidents be alleged to prevent continuation of the proceedings or the issuance of a decision. The foregoing shall be resolved in the judgment, in accordance with this Law.

If the judge finds the action to be well-founded, the judgment shall declare the extinction of domain over all real rights, principal or accessory, and shall order their transfer in favor of the National Council for the Administration of Property in Extinction of Domain.

A final judgment declaring the extinction of domain, in addition to serving as lawful and enforceable title, shall have the effect that the respective movable property and immovable property, money, gains, fruits and financial products are transferred in favor of the State in the name of the National Council for the Administration of Property in Extinction of Domain and pass into the ownership thereof to proceed in accordance with the provisions of this Law. Accordingly, the corresponding public registries are obligated to effect its registration for purposes of opposability against third parties.

If in the decision the rights of a pledge or mortgage creditor are recognized, the National Council for the Administration of Property in Extinction of Domain shall proceed to pay the credit, provided that the property yields an economic gain to the State after payment of the respective credit.

In order to render effective the special constitutional protection, when dealing with immovable property subject to extinction of ownership and located in community lands of the indigenous peoples, the judge or tribunal shall consult with the legitimate community authorities, within the time limits established by this Law for the incorporation of evidence and conclusions, regarding the manner in which said immovable property shall be transferred in the name of the community concerned and regarding its regulation in accordance with its own rules, customs, practices and traditions; the competent judge or tribunal shall record it in the proceedings and the respective judgment.

In the same judgment, the competent judge or tribunal shall make a declaration of extinction of domain over property of equivalent value of the same holder, when in the execution of the judgment it is not possible to identify, locate or extinguish the domain of the specific property to which the action relates.

The provisions of this article shall not be interpreted to the detriment of third parties in good faith, exempt from fault or transaction simulation.

They shall be removed from their positions for non-compliance.

Certification to the Superintendency of Tax Administration, to the Public Prosecutor's Office and to the municipalities. In the event that the inadmissibility of the extinction of domain is declared, the judge shall order in the same decision that what is pertinent be certified to the Superintendency of Tax Administration, to the Public Prosecutor's Office and to the municipalities, so that the investigations corresponding to each institution regarding the property or patrimony for tax purposes, payment of fines and the corresponding criminal, civil and administrative actions are initiated immediately. The certification of what is pertinent shall be forwarded to said institutions within a time limit of not more than twenty-four (24) hours from the date of the decision.

Expenses incurred in connection with the investigation and the processing of the extinction of domain action, as well as those incurred in the administration of the property by the National Secretariat for Administration of Property in Extinction of Domain, shall be paid out of the financial returns of the property that has entered the fund of said institution.