Capítulo VI. Disposiciones finales, transitorias y derogatorias

In criminal cases under investigation or prosecution upon the entry into force of this Law, where the grounds established in Article 4 of this Law exist, the Public Prosecutor's Office shall immediately initiate the investigation for the exercise of the action for extinction of domain.

The National Council for Administration of Property in Extinction of Domain shall begin its functions thirty (30) days after this Law enters into force.

All regulations shall be promulgated within the maximum time limit of ninety (90) days, counted from when the National Council for the Administration of Property in Extinction of Domain begins its activities.

The obligation of the State is established to include an allocation of ten million quetzales (Q.10,000,000.00) in the General Budget of Expenditures of the State, as privative funds, for three years, from the entry into force of this Law, to cover the initial installation, organization and operation expenses of the National Council for the Administration of Property in Extinction of Domain, until it achieves its financial autonomy with the funds originating from the resources derived from extinction of domain, in accordance with this Law.

The headings of the articles of this Law have no interpretative validity.

Article 2 Bis is added to the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic, which shall read as follows:

“Article 2 Bis. Autonomy of the crime. The crime of money laundering or other assets is autonomous and for its prosecution no indictment, judgment nor conviction relating to the crime from which the property, money or other assets proceed or originate is required.

Evidence of knowledge of the illicit provenance or origin of the property, money or other assets, required in the crimes of money laundering, may be established by any means of evidence, in accordance with the Code of Criminal Procedure including the inferences arising from the objective circumstances of the case.”

Article 17 Bis is added to the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic, which shall read as follows:

“Article 17 Bis. Extinction of ownership. Articles 8, 14, 15, 16 and 17 of this Law shall apply only

competent, that the action for extinction of ownership does not proceed, in the manner provided in the law on the matter, which has preeminence over this Law.”

The second paragraph of Article 25, Declaration, of the Law Against Money Laundering or Other Assets, Decree Number 67-2001 of the Congress of the Republic, is reformed to read as follows:

“Customs agents or National Civil Police agents may verify, by interview, the information provided in the sworn declaration contained in the form referred to in the preceding paragraph; they may likewise search the baggage, containers or shipments of passengers and of legal persons, as applicable, as well as the passenger himself.

In case of unjustified omission of the declaration or falsity therein, the money or related documents shall be seized and placed at the disposal of the Public Prosecutor's Office for its investigation and the exercise of the extinction of domain action, contemplated in the law on the matter. The person shall be subject to criminal proceedings for the crimes of ideological falsehood and perjury, and, if the legal conditions are met, for money laundering or other assets or concealment, as applicable.”

A fourth paragraph is added to Article 18, Forfeiture, of the Law Against Narcoactivity, Decree Number 48-92 and its amendments of the Congress of the Republic, which reads as follows:

"The preceding paragraphs of this article shall apply only when, in a judgment, it is declared by the competent tribunal that extinction of ownership does not proceed, in the manner provided for in the law on the matter, which has precedence over this article."

The first paragraph of Article 46, Presumption, of the Law Against Narcoactivity, Decree Number 48-92 of the Congress of the Republic and its amendments is amended to read as follows:

“For the purposes of this Law, the presumption is established that the money, product or property come from transactions derived from the crimes to which this Law refers, when they have been acquired or negotiated within a time limit of seven (7) years prior to the respective prosecution; said time limit, for reasons of non-retroactivity of the law, shall begin to be counted from the entry into force of the present Law.”

Article 9, literal c), Obstruction of Justice, of the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic, is amended to read as follows:

“c) A private individual, or whoever, being a public official, public servant or public employee, participates in the investigation phase or in the special methods of investigation, the prosecution, processing and adjudication of the crimes established in this Law, who:

1)Unduly protects or conceals the person or persons appearing as suspects in an investigated act;

2)Conceals information or delivers erroneous or false information affecting the proper course of the investigation or the proceedings;

3)Forges or alters documents and evidentiary means, or destroys them;

4)Acts with intentional delay, in such a way as to obstruct the investigation, the criminal prosecution or the adjudication;

5)Gives false testimony in favor of the suspect or the accused person, in the cases arising from the commission of the crimes established in this Law.”

Article 75, Disposition of seized property as proceeds of criminal activity, of the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic, is reformed to read as follows:

“Article 75. Disposition of seized property as proceeds of criminal activity. Except where in the applicable law it has been declared that extinction of ownership shall not be declared, with respect to the property seized in proceedings for crimes committed by organized criminal groups, where it provides for confiscation of the sequestered property, the Supreme Court of Justice may agree on the disposition of the property for use by the authorities responsible for preventing, controlling, investigating and prosecuting such crimes.”

Article 83 Bis is added to the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic, which shall read as follows:

“Article 83 Bis. Object of the measures. If the action for extinction of ownership has not been previously initiated in accordance with the law on the matter, once the measures referred to in Articles 73, 74, 78, 79, 80 and 83 of this Law have been ordered, the Prosecutor General shall take the necessary measures for the Public Prosecutor’s Office to initiate the investigation and exercise the action for extinction of ownership in the manner provided by law. The action for extinction of ownership shall have preference over any other procedure of an equal or similar nature contemplated in this Law.”

A second paragraph is added to Article 86, Execution of the Measure, of the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic, which shall read as follows:

“When the action for extinction of ownership is appropriate, in accordance with the law on the matter, the incident shall not be admitted except on the terms established by the Law of Extinction of Ownership.”

Article 89, Confiscation, of the Law Against Organized Crime, Decree Number 21-2006 of the Congress of the Republic, is amended to read as follows:

“Article 89. Confiscation. When property that is the product of the crime is of illicit commerce or of prohibited use, the Public Prosecutor's Office may request by incidental proceedings the extinction of the right of ownership or possession thereof by means of confiscation, once an order of prosecution exists.

When such property is of illicit origin but of licit commerce, the Public Prosecutor's Office shall initiate the action for extinction of domain, in accordance with the law on the matter.”

Article 100 of the Notary Code, Decree 314 of the Congress of the Republic and its amendments, is reformed to read as follows:

“Article 100. Notaries who fail to send the certified copies (testimonios) referred to in Article 37, or to give the notices to which Article 38 of this Law refers, within the time limits established for such purpose, shall incur a fine *equivalent to one hundred percent (100%) of the fees established in accordance with the tariff provided for in Title XV of this Law, per violation, which shall be imposed by the Director General of Protocols and shall be paid into the Treasury of the Judicial Branch, as exclusive funds of said Branch.

All sanctions established by the Director General of Protocols shall be imposed following a fifteen-day hearing granted to the interested party, which hearing shall be notified by certified mail with acknowledgment of receipt, to the last address established for such purpose in the General Archive of Protocols. Against what was decided by the Director General of Protocols, an appeal for reconsideration shall lie, which must be filed within three days counted from the date of receipt of the notification by certified mail. Said appeal shall be filed before the Director himself, who shall forward the proceedings to the Supreme Court of Justice for decision. Said tribunal shall decide by applying the incident procedure provided for in the Law of the Judicial Branch. Against the decision of the Supreme Court of Justice no other appeal shall lie. Whenever the appeal filed is declared without merit, the fine provided for in the first paragraph of this article shall be imposed on the appellant, increasing it *by between five hundred *and three thousand quetzales, *according to the amount of the decision appealed.”

A third paragraph is added to Article 60, Forfeiture, of the Penal Code, Decree Number 17-73 of the Congress of the Republic, which shall read as follows:

“Forfeiture shall proceed only in the event that the competent judge or tribunal does not declare the extinction of ownership, in accordance with the law governing the matter.”

Article 108, Registered Shares and Bearer Shares, of the Commercial Code of Guatemala, Decree Number 2-70 of the Congress of the Republic, is amended to read as follows:

“Article 108. Shares. Shares shall be registered.

Stock corporations incorporated before the entry into force of the Law on Extinction of Domain, whose articles of incorporation authorize them to issue bearer shares and that have pending issuance of shares, shall carry it out solely with registered shares.”

Article 195. Partnership Limited by Shares. A partnership limited by shares is that in which one or more general partners are liable in subsidiary, unlimited and joint and several form for the corporate obligations and one or more limited partners have liability limited to the amount of the shares they have subscribed, in the same manner as the shareholders of a corporation.

Contributions must be represented by shares, which must be registered.

Partnerships limited by shares incorporated before the entry into force of the Law on Extinction of Domain, whose articles of incorporation authorize them to issue bearer shares and which have pending issuance of shares, shall effect such issuance solely with registered shares.

Article 204, on stock companies, of the Commercial Code of Guatemala, Decree Number 2-70 of the Congress of the Republic, is amended to read as follows:

“Article 204. In Stock Companies. In stock companies, the increase of authorized capital may be agreed through the issuance of new shares or by increase of the nominal value of the shares; in both cases, the shares shall be nominative.

The issuance, subscription and payment of shares within the limits of the authorized capital shall be governed by the provisions of the corporate deed. In any case, the issuance of shares shall be carried out only with nominative shares.”

A time limit of two (2) years, counted from the entry into force of this Law, is established for corporations and partnerships limited by shares, regulated under the Commercial Code of Guatemala, Decree Number 2-70 of the Congress of the Republic, that have issued bearer shares before the beginning of the entry into force of this Law, to carry out the respective conversion into registered shares.

Within the time limit of thirty (30) days after the expiry of the time limit of two (2) years referred to in the preceding paragraph, corporations and partnerships limited by shares shall give notice to the Mercantile Register of having complied with this provision and, where applicable, informing of the bearer shares that have not been converted into registered shares.

Upon expiry of that time limit of two (2) years, only the rights embodied in registered shares may be exercised. In the case of bearer shares that have not been converted into registered shares, the procedure stipulated in Article 129 of the Commercial Code of Guatemala, Decree Number 2-70 of the Congress of the Republic, shall be followed.

The Mercantile Register shall verify compliance with the provisions of this article, in accordance with the procedures it implements for such purpose.

For the purposes of the administration of extinguished property or property subject to the extinction of domain regulated in this Law, the rules relating to the judicial warehouse contained in Decree Number 69-71 of the Congress of the Republic and its amendments shall not apply, nor shall those contained in Decree Number 21-2005 of the Congress of the Republic, relating to the exemption from customs duties and value-added taxes on importation and from the vehicle circulation tax.

This Decree shall enter into force six (6) months after its publication in the Official Gazette.