Capítulo V. Administración de los bienes y recursos

The National Council for the Administration of Property Subject to Extinction of Ownership is hereby created, as a body attached to the Vice-Presidency of the Republic, with its own legal personality for the performance of its contractual activity and the administration of its resources and patrimony.

The National Secretariat for the Administration of Property Subject to Extinction of Ownership shall be subordinate to the National Council for the Administration of Property Subject to Extinction of Ownership, which shall be an executive body in charge of a Secretary General and a Deputy Secretary General, who shall be the highest-ranking public officials for purposes of the direction and administration of the Secretariat. They shall collaborate with, support and execute the decisions emanating from the National Council for the Administration of Property Subject to Extinction of Ownership and the follow-up of its policies, as well as the planning, organization and control of the institution, and they shall have all other functions stipulated by this Law and its regulations.

The Secretary General and the Deputy Secretary General shall be appointed by the Vice-President of the Republic, by competitive examination, adhering as applicable to the principles provided for in the Law on Nominating Commissions, Decree Number 19-2009 of the Congress of the Republic.

The Secretary General and the Deputy Secretary General shall hold office for a term of three (3) years, and may be reelected for a single equal period.

The Secretary General and the Deputy Secretary General of any one or several of the provisions contained in Articles 16 and 17 of the Probity and Responsibilities of Public Officials and Public Employees Law, Decree Number 89-2002 of the Congress of the Republic.

Likewise, the Secretary General and the Deputy Secretary General may resign, for justified cause, from the office to which they were appointed.

Whether by removal, dismissal or resignation, the person appointed to replace the Secretary General or the Deputy Secretary General in office shall do so to complete the term of the original appointment.

The National Secretariat for the Administration of Property Subject to Extinction of Ownership shall ensure the proper administration of all property under its responsibility and of property declared subject to extinction of ownership pursuant to this Law. In addition, it shall be in charge of the receipt, identification, inventory, supervision, maintenance and reasonable preservation of the property. It shall likewise monitor the property subject to this Law that represents an economic interest for the State. It shall likewise be responsible for alienating, auctioning or donating property declared subject to extinction of ownership.

The technical and administrative structure, functions and procedures of the National Secretariat for the Administration of Property Subject to Extinction of Ownership shall be governed by the regulation of this Law.

The National Council for the Administration of Property in Extinction of Domain shall be the governing body with respect to the administration of property subject to the action of extinction of domain, in application of this Law. It shall be the highest decision-making body and shall be chaired by the Vice President of the Republic, who shall have judicial and extrajudicial representation, with the powers corresponding to him in accordance with this Law, and those expressly granted to him by the Council.

The National Council for the Administration of Property Subject to Extinction of Domain shall be composed of the following members:

a)The Vice President of the Republic, who shall preside over it.

b)A Magistrate appointed by the Supreme Court of Justice.

c)The Prosecutor General of the Republic and Head of the Public Prosecutor's Office.

d)The Attorney General.

e)The Minister of the Interior.

f)The Minister of National Defense.

g)The Minister of Public Finance.

h)The General Director of the Institute for Assistance and Attention to the Victim of Crime.

It shall correspond to the National Council for the Administration of Property Subject to Extinction of Domain to hear, approve, award and finally decide on the investments to be made from the fund of seized moneys, as well as contracts for lease, administration, trust, alienation, auctions or donation of extinguished property.

The decisions adopted by the National Council for the Administration of Property Subject to Extinction of Domain must be agreed by consensus of its members for approval. In the event consensus is not reached, decisions shall be taken by simple majority of the members.

The National Secretary for the Administration of Property Subject to Extinction of Domain shall participate in the National Council with voice but without vote.

The property representing an economic interest with respect to which interim protective measures or precautionary measures are adopted shall immediately be placed at the disposal of the National Secretariat for Administration of Property Subject to Extinction of Dominion, which shall proceed to establish administration trusts in banking or financial entities subject to supervision by the Superintendency of Banks. Failing that, it may lease or enter into other contracts at a fair price with natural or legal persons for the purpose of maintaining the productivity and value of the property.

When the property in question constitutes evidence in the criminal proceedings, the necessary anticipated evidence shall obligatorily and immediately be taken. The property shall be preserved and kept in custody by the Public Prosecutor's Office until the corresponding anticipated evidence is taken. Upon conclusion of the taking of the anticipated evidence, the Public Prosecutor's Office shall transfer it to the National Secretariat for Administration of Property Subject to Extinction of Dominion for such action as may correspond, in accordance with this Law.

The property that the Public Prosecutor's Office determines must be preserved on the ground that it may provide additional evidence in the proceedings may not be retained for a period longer than two (2) years, after the lapse of which it must be transmitted to the National Council.

In order to ensure that the property subject to extinction of domain proceedings is or continues to be productive and employment-generating and to prevent its conservation and custody from generating expenditures for the State budget, the National Secretariat for Administration of Property in Extinction of Domain may enter into, with respect to any of them, lease, commodatum, administration or fiduciary contracts, upon prior undertaking of advance evidence where necessary. The procedures for the selection of contractors and for the execution of the contracts shall be governed by the rules provided for in the State Contracting Law, Decree Number 57-92 of the Congress of the Republic, without prejudice to being supervised by the Council.

In any event, for the selection of the contractor, the National Secretariat for Administration of Property in Extinction of Domain shall publish, at a minimum, a notice of invitation to quote in a newspaper of wide national circulation, in the GUATECOMPRAS System and on the entity's electronic page, for the submission of proposals and shall decide on its award at a public hearing, on the basis of at least three (3) proposals. In the event that no more than a single bidder appears and its proposal is found eligible, the contract may be awarded, recording this fact in the respective record, to which a certified copy of the notices and publications made shall be attached.

For the contractor selection process, as in that of the execution of the contracts, the applicable guarantees shall be required, in accordance with the specific nature of each.

The approval and award of the contractor shall be the responsibility of the National Council for Administration of Property in Extinction of Domain and the principles of celerity and urgency shall govern, regardless of the applicable rules.

The National Secretariat for Administration of Property in Extinction of Domain and the National Council for Administration of Property in Extinction of Domain shall reliably verify the qualifications, qualities, background and honorable standing of the contractors.

Where possible, with the property indicated in this Law, public administration trusts may be constituted or such property shall be given in lease, use, deposit or onerous commodatum to prevent the loss of its value.

In any event, the fiduciary entity shall be paid, with a charge to the administered property or its proceeds, the amount of its fees and the administration costs incurred, ensuring that they do not exceed the value of the property or its productivity. Any shortfall arising to cover them shall be enforceable with the same priority given to administration expenses in a creditors' proceeding, against the value of the property, once it is liquidated or auctioned.

Approval of the creation of the trust shall be the responsibility of the National Council for Administration of Property in Extinction of Domain.

The National Secretariat for the Administration of Property in Extinction of Domain may authorize the use of the property which by its nature requires being used in order to prevent its deterioration, upon prior insurance for the value of the property to guarantee possible compensation for deterioration or financial institutions supervised by the Superintendency of or destruction, when the characteristics and value of the property so warrant. The costs of the insurance policy shall be covered by the requesting public agency or institution.

The provisional use of the property shall be authorized exclusively for the National Secretariat for the Administration of Property in Extinction of Domain and for the public agencies or institutions that participate in or collaborate with the investigation and the proceedings for extinction of domain. The assignment procedure shall be carried out in accordance with the regulations of the institution.

The National Secretariat for the Administration of Property in Extinction of Domain is empowered to open checking accounts, in national or foreign currency, in any of the banking or financial institutions supervised by the Superintendency of Banks, so that seized cash, monetary resources or securities subject to interim protective measures, as well as those derived from the sale of perishable property, animals, livestock and the early alienation of property, are transferred or deposited into the seized money fund, the amount of which shall form part of the aggregate of its deposits and money.

Said fund may generate returns and the proceeds thereof shall be allocated to:

1.Forty percent (40%), to cover operating expenses of the entities that participated in the investigation and the extinction-of-domain procedure. 2. Forty percent (40%), for the maintenance of seized property. 3. Twenty percent (20%), to cover compensation for loss or destruction of property.

The distribution of the money to cover operating expenses among the entities shall be established by regulation.

In any case, when the competent judicial authority orders the return of cash, it shall include the interest generated, when the judicial authority so indicates.

The National Secretariat for the Administration of Property in Extinction of Domain shall submit, at least semi-annually, to the National Council for the Administration of Property in Extinction of Domain, or when the latter so requires, as well as to the Congress of the Republic, a report on the returns generated and their distribution. All its activities shall be audited by independent external audits, in addition to the Office of the Comptroller General of Accounts of the Republic of Guatemala.

The National Secretariat for the Administration of Property Subject to Forfeiture is authorized to open checking accounts, in national or foreign currency, in banks, into which cash, monetary resources or securities or the proceeds from the sales of property or services whose forfeiture has been declared are to be transferred or deposited.

In accordance with the provisions of the preceding article, the National Secretariat for the Administration of Property in Extinction of Ownership shall distribute the resources as follows:

1.Twenty percent (20%), exclusively earmarked to cover the expenses of the special investigative methods units created pursuant to the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic; the task forces or units in charge of the aerial and maritime interception of drugs.

2.Twenty percent (20%), which shall be privative funds of the Public Prosecutor's Office and shall be invested in witness protection programs, compliance with this Law and the investigation and trial of the crimes of money laundering or other assets, drug trafficking and organized crime.

3.Eighteen percent (18%), which shall become part of the privative funds of the Ministry of the Interior for training and acquisition of equipment in direct support of the investigative units related to this Law and for the Center for the Collection, Analysis and Dissemination of Criminal Information of the National Civil Police.

4.Fifteen percent (15%), which shall become part of the privative funds of the National Secretariat for the Administration of Property in Extinction of Ownership, exclusively earmarked to cover the expenses of administration of seized property and such extinguished property until its sale is carried out.

5.Twenty-five percent (25%) for the privative funds of the Judicial Branch.

6.Two percent (2%) for the Office of the Attorney General.

The National Secretariat for the Administration of Property in Extinction of Ownership shall inform the National Council for the Administration of Property in Extinction of Ownership regarding actions taken, semi-annually or whenever the latter so requests.

Except as provided for indigenous communities and as provided in Article 47 of this Law, if in a final decision the extinction of ownership of the property is ordered in favor of the National Council for the Administration of Property Subject to Extinction of Ownership, the Secretariat may retain them for the fulfillment of its objectives, alienate them or auction them pursuant to this Law.

That prevent or render impossible its due registration, the Extinction of Ownership created through this Law, the National Secretariat for the Administration of Property Subject to Extinction of Ownership and the National Council for the Administration of Property Subject to Extinction of Ownership shall reliably verify the qualifications, qualities, background and honorable reputation of the participants in the alienation or auction proceedings referred to in the preceding paragraph.

It may also donate them to entities of public interest, but preferentially to:

1.The special units of the Ministry of the Interior, of the National Civil Police and of the Public Prosecutor's Office, when dealing with vehicles, equipment and weapons that are not for the exclusive use of the army.

2.The Ministry of National Defense, when dealing with property, equipment or weapons for the exclusive use of the army, seagoing vessels or fixed- or rotary-wing aircraft, which must be used in support of the Public Prosecutor's Office, the Ministry of the Interior and the National Civil Police in the prevention and prosecution of organized crime.

3.The Judicial Branch, as applicable.

The National Secretariat for the Administration of Property in Extinction of Ownership, under a reasoned decision, may destroy or donate extinguished property that is in a state of deterioration that makes its repair or improvement impossible or excessively onerous, with prior authorization from the National Council for the Administration of Property in Extinction of Ownership.

Taxes and levies on the property under the administration of the National Secretariat for Administration of Property in Extinction of Domain shall not accrue remunerative or moratory interest during the extinction of domain proceedings, and during such period the time limit to initiate or continue tax collection proceedings shall be suspended. Once extinction of domain has been declared, and once the property has been alienated, the outstanding tax amount payable shall be paid from the proceeds of the sale. In no case shall the State assume payment of tax obligations incurred prior to the extinction of domain action concerning the property.

When extinction of ownership over property subject to registration in the corresponding public registers is ordered, the decision of the competent judicial authority shall suffice for the respective section of said register to proceed with the registration or transfer of the property in favor of the National Council for the Administration of Property in Extinction of Ownership. Such registration or transfer shall be exempt from payment of all taxes, fees, charges and transfer and property encumbrances, as well as from payment of stamps or transfer or registration duties.

In the case of vehicles, vessels, aircraft, or others that have alterations of signs and marks, the Superintendency of Tax Administration or the respective institution shall grant special identification for their due individualization and registration in favor of the National Council for the Administration of Property in Extinction of Ownership. Such property may only be used by the State and may not be alienated or auctioned.

The National Secretariat for the Administration of Property Subject to Extinction of Ownership may pay the amount owed for pledges, movable security interests or mortgages in good faith or not simulated that affect the property subject to extinction of ownership, when:

1.The extinction of ownership is declared and the rights in rem are recognized, the property shall be alienated or auctioned and the credit shall be paid. The Secretariat may also deliver the property in dation in payment, when it deems it advisable.

2.The National Council for the Administration of Property Subject to Extinction of Ownership considers that it serves its interests, it may appear as an interested third party at any stage in the enforcement proceedings regulated in the Civil and Commercial Procedural Code, Decree Law 107, and pay the amount owed to the creditors, in which case it shall be subrogated to the rights of the good faith creditor.

3.The early auction, sale or forced sale of property subject to interim protective measures is authorized when they are at risk of perishing, deteriorating, depreciating or losing value or whose preservation causes losses or expenses disproportionate to their value or administration, upon prior recognition of the rights in rem and on the terms indicated in the court order.

The National Council for the Administration of Property in Extinction of Dominion may authorize sharing the property or resources whose extinction of dominion was declared, with other States, in the case of joint operations, in accordance with the principles governing international cooperation or bilateral or multilateral agreements.