Título IV. Disposiciones comunes a todos los procesos

The jurisdictional function may not be delegated by some judges to others. Judges must hear and decide by themselves the matters within their authority.

Judges and tribunals may commission others of the same or inferior category for specified proceedings, preferring one of the same subject matter and from a different locality. To those of the same category they shall address themselves by exhorto; to lower ones, by despacho; and to superior ones or to those of other States, by suplicatorio or carta rogativa.

The tribunals shall direct letters rogatory to foreign countries through the President of the Supreme Court of Justice, when other laws or treaties in force do not provide a different procedure.

Every judicial action shall be brought before the judge with jurisdiction to hear it; and whenever, from the statement of the facts, the judge finds that the judge does not have such jurisdiction, the judge must abstain from hearing it and, without further proceedings, shall order the interested party to appear before the appropriate authority, in which case, upon request of the interested party, the proceedings shall be remitted to the competent tribunal or office. The foregoing does not apply in cases in which extension of jurisdiction is admissible.

Whoever is sued as defendant, prosecuted or required for the performance of a judicial act before a judge lacking jurisdiction may ask such judge to refrain from hearing the matter and to remit the proceedings to the appropriate judge.

The declinatory plea must be filed by the interested party within three days of being notified, questioned or summoned; and it shall be processed as an incident. The decision issued shall be appealable and the tribunal hearing the appeal, upon deciding it, shall remit the case file to the appropriate judge, with notice to the parties.

The processing of the principal matter may not continue while jurisdiction has not been resolved.

The provisions of this article and of the preceding one shall apply only in cases that are not governed by special laws.

If any doubt or conflict should arise as to which judge must hear a matter, the case file shall be referred to the Supreme Court of Justice so that the appropriate chamber of the corresponding branch may decide and refer the matter to the tribunal that must hear it.

The Public Prosecutor's Office may not extend jurisdiction, nor may those who exercise rights belonging to another, except agents under a mandate and representatives who are legally empowered to do so.

It is the obligation of the tribunals to take cognizance on its own initiative of questions of jurisdiction and competence, under penalty of nullity of the proceedings and liability of the public official, except in those cases in which the competence of the judges may be extended where territorial competence is involved.

The following are impediments for a judge to hear a specific matter:

a)Being a party to the matter.

b)The judge or any of the judge's relatives having been an advisor, attorney or expert in the matter.

c)The judge or any of the judge's relatives having a direct or indirect interest in the matter.

d)The judge being related to any of the parties.

e)The superior judge being a relative of the lower judge whose rulings are pending before the former.

f)The judge or any of the judge's relatives having accepted an inheritance, legacy or donation from any of the parties.

g)The judge being a partner or participant with any of the parties.

h)Having heard the same matter in another instance or in cassation.

The judges must excuse themselves in the following cases:

a)When they have intimate friendship or relations with any of the parties, which in the judgment of the tribunal, according to the evidence and circumstances, cast doubt on the impartiality of the adjudicator.

b)When the judge or his descendants have a marriage arranged with any of the parties, or with blood relatives of any of them.

c)When the judge lives in the same house with any of the parties, except for the case of hotels or boarding houses.

d)When the judge has intervened in the matter from which the litigation results.

e)When the judge or his relatives have been tutors, protutors, guardians, principals or agents under a mandate of any of the parties or of their descendants, spouses or siblings.

f)When the wife or the blood relatives of the judge have accepted inheritance, legacy or donation from any of the parties.

g)When any of the parties is a table companion or dependent of the judge or the latter is a table companion or dependent of the former.

h)When the judge, his wife, descendants, ascendants, or siblings and any of the parties have executed a written contract from which results a legal relationship that benefits or harms the judge, or any of his said relatives.

i)When the judge, his wife or blood relatives have a pending trial with any of the parties or have had one a year before.

j)When the judge, before deciding, has expressed an opinion in the matter being heard.

k)When damage or benefit may result from the matter for the interests of the judge, his wife or any of his blood relatives.

l)When the judge, his wife, or any of his blood relatives have grave enmity with any of the parties. It is presumed that grave enmity exists from one of the parties having harmed or attempted to harm the judge or the latter having harmed or attempted to harm any of the former, in his person, his honor or his property, or the relatives of either side mentioned in this subsection.

In criminal cases, the accusation or complaint is a perpetual ground for excusal, but the antejuicio shall not be a ground for recusal or excusal of the magistrates or judges in the matters that were under their jurisdiction and for which it had been initiated, except from the moment when it is declared that there is ground for formation of a cause.

The grounds expressed in the preceding article also apply to the attorneys and representatives of the parties.

The causes for recusal are the same as those for impediments and excuses.

Recusal shall have no suspensive effects and the matter shall continue its proceedings until it is ready for final decision. If it is a criminal matter, the recusal must be resolved before the debate begins. However, if the recusal is declared well-founded, the proceedings conducted from the date on which the recusal was filed shall be void. If the recusal is declared unfounded, a fine of five hundred to one thousand quetzales shall be imposed on the recusing party. Since deciding the merits of the case does not fall to them, the members of the tribunal hearing a recusal may not be recused.

A judge who has grounds for excusal shall make it known to the parties, and the parties, at the time of the notification or within twenty-four hours, shall state in writing whether or not they accept it. Upon expiration of that time limit without such statement having been made, the excusal shall be deemed accepted and the judge shall refer the case file to the superior tribunal, for the sole purpose of designating the tribunal that is to continue hearing the case; the same procedure shall be followed in the event that the parties expressly accept the ground.

If one of the parties accepts the invoked ground expressly or tacitly and the other does not, the case file shall be referred to the superior tribunal, so that within forty-eight hours it may rule on its admissibility, and if it declares it well-founded, it shall remit the case file to the judge who is to continue hearing the case.

In the event that none of the parties accepts the excusal, the judge shall continue hearing the case; but he may no longer be subsequently recused on the same ground.

If the excuse is that of a member of a collegiate tribunal, he shall record it immediately in the proceedings, and the president of the tribunal or the person acting in his stead shall order that it be made known to the parties for the purposes indicated in the preceding article. The tribunal, after being duly integrated, shall decide what is appropriate within forty-eight hours. The same procedure shall be followed in case of impediment, but without notice to the parties.

The parties have the right to request that judges excuse themselves and to challenge them with stated cause, at any stage of the proceedings before judgment has been rendered. If the judge accepts the alleged ground as true, the judge shall issue a decision to that effect and elevate the record to the superior tribunal so that it decides what is appropriate within forty-eight hours. If it grants it, it shall remit the record to the one who must continue hearing it.

If the judge considers that the ground is not true or that there is no basis for recusal, he shall so record in a reasoned decision, and in the first case he shall continue hearing the matter without further proceedings, but in the recusal case he shall remit the proceedings to the superior tribunal, which shall process and decide it as an incident.

In case of impediment, the judge shall withdraw on its own initiative and remit the proceedings to the superior tribunal, for it to decide and remit them to the judge who must continue hearing the matter.

When members of collegiate tribunals are recused, the recused person shall immediately state in the record whether he acknowledges or denies the ground for the recusal. The tribunal, constituted as appropriate, shall give it the procedure of incidents. No appeal shall lie against what is decided, as well as in the case provided for in Article 127.

In case of legally declared impediment, excuse or recusal of any of the magistrates of any collegiate tribunal, the respective substitutes shall be called; if even so the tribunal is not constituted, the substitutes of other tribunals shall be called. But if for any unforeseen reason the tribunal cannot be constituted, the matter shall be referred to the presidency of the Judicial Branch, so that within the time limit of three days it shall designate the one who must continue hearing it.

For the same grounds established for judges, arbitrators and experts must abstain or excuse themselves; and they may also be challenged by the parties provided that the alleged grounds supervened or became known to the challenger after the signing of the deed of submission. In these cases the same procedure as when judges are involved shall be observed.

The parties may recuse, in the same matter, up to two secretaries, auxiliary officers of justice and process servers, without expression of cause, and the recusal shall be decided summarily. Recusals of these employees that are with expression of cause shall be processed as an oral or written incidental proceeding, according to the class of trial in which they are brought.

Any ancillary matter that arises and is raised in connection with proceedings and for which no procedure is prescribed by law shall be processed as an incident. Where matters are completely unrelated to the principal matter, incidents shall be rejected on its own initiative. The order deciding the incident shall contain the award of costs against the party who brought it without grounds, except in case of evident good faith.

Incidents that place obstacles to the course of the matter shall be processed in the same case file, the latter remaining suspended in the meantime.

Any incident without whose prior decision it is absolutely impossible in fact or in law to continue processing it impedes the course of the matter. In any event the tribunal shall qualify the nature of the incident when admitting it for processing.

. Those which do not obstruct the continuation of the matter shall be conducted in a separate record, which shall be formed with the written submissions and documents designated by the judge; and when the latter are not to be detached, they shall be certified in the incident record at the expense of the party who initiated it.

Once an incident has been initiated, a hearing shall be given to the other interested parties, if any, for a time limit of two days.

Incidents of nullity shall lack suspensive effects, except if the tribunal considers it necessary and so declares in reasoned form and under its liability.

If the incidental matter relates to questions of fact and any of the parties requests that it be opened to evidence or the judge considers it necessary, it shall be opened to evidence for a time limit of eight days. The parties must offer and individually identify the evidence when initiating the incidental matter or when responding to the hearing.

The Judge shall decide the incidental matter without further proceedings, within three days after expiration of the hearing time limit, and if evidence has been opened, the decision shall be issued within the same time limit after conclusion of the evidence time limit. The decision shall be appealable, except in cases in which the laws governing special matters exclude such appeal or in the case of incidental matters decided by collegiate tribunals. The time limit for deciding the appeal, when its filing is admissible, shall be three days. The appeal shall have suspensive effects in incidental matters that obstruct the progress of the principal matter. In the other cases it shall not have such effects and the principal matter shall continue its proceedings until it is ready for final decision. The tribunal hearing on appeal shall do so on the basis of a copy of the record certified by the corresponding Secretariat. Incidental matters that terminate the proceedings are excepted, in which case the proceedings shall be suspended.

Judicial decisions are:

a)Decrees, which are determinations of procedure.

b)Orders, which decide matters that are not mere procedure, or resolve incidental matters or the principal matter before the conclusion of the procedure. Orders shall be duly reasoned.

c)Judgments, which decide the principal matter after exhaustion of the procedural steps of the proceedings and those which, without meeting these requirements, are designated as such by law.

Orders or decrees must be issued no later than the day following receipt of the requests; interlocutory orders within three days; judgments within fifteen days after the hearing, and the hearing shall be held within fifteen days after the processing of the matter is concluded, unless special laws establish different time limits, in which case the provisions of those laws shall govern.

Violation of this article shall be punished with a fine of twenty-five (Q.25.00) to one hundred (Q.100.00) quetzales, to be imposed on the judge or on each member of a collegiate tribunal, unless the delay was for justified cause in the opinion of the superior tribunal. Such cause shall be recorded in the record, for the purpose of its evaluation.

Orders or decrees shall be notified within a maximum time limit of two days following issuance by the competent tribunal; definitive orders shall be notified within a maximum time limit of five days following issuance by the competent tribunal.

Judgments shall be notified within a maximum time limit of fifteen days following rendition by the competent tribunal.

Violation of this article shall cause those found liable to incur administrative liability and they shall be subject to the sanctions that the Supreme Court of Justice may impose on them.

Every judicial decision shall necessarily bear the name of the tribunal issuing it, the place, the date, its content, the citation of laws and the full signatures of the judge, the magistrate or the magistrates, as applicable, and of the secretary, or only that of the latter when legally authorized to issue orders or decrees of mere procedure.

Judgments and orders may not be revoked by the tribunal that issued them. The following are excepted:

a)Orders originating from collegiate tribunals;

b)Decisions issued by the Supreme Court of Justice that infringe the procedure, when no judgment has been issued.

In these cases reconsideration lies.

Reconsideration of orders shall be requested within the two days following the last notification. A hearing on the request shall be given to the other party for two days, and with its answer or without it, the tribunal shall decide within the following three days.

Decrees are revocable by the tribunal that issued them; and both the request and its processing shall be subject to the provisions of the preceding article.

If the proceedings are oral, the petition shall be made in an appearance, and the tribunal shall decide within twenty-four hours.

No appeal shall lie against the decisions rendered in these and in the cases of the preceding article.

Judgments shall be drafted stating:

a)Full name, corporate name or denomination and domicile of the litigants; where applicable, of the persons who represented them; and the name of the attorneys for each party.

b)Class and type of proceedings and the subject matter at issue, in relation to the facts.

c)Summaries of the memorial of claim, its answer, the counterclaim, the defenses raised and the facts submitted to evidence shall be recorded in separate paragraphs.

d)The legal considerations addressing the weight of the evidence rendered and which of the facts under discussion are deemed proven; the fundamental doctrines of law and principles applicable to the case shall likewise be set forth and the laws supporting the reasoning on which the judgment rests shall be analyzed.

e)The operative part, which shall contain express and precise decisions, consistent with the subject matter of the proceedings.

Second-instance judgments shall contain a summary of the appealed judgment, correcting facts that have been recounted inaccurately; the points that have been the subject of the proceedings or with respect to which there was controversy, an excerpt of the evidence submitted and of the arguments of the contending parties; a precise account of the aspects challenged in the appealed judgment with the legal considerations invoked in the challenge; the study made by the tribunal of all the laws invoked, making an analysis of the conclusions on which it bases its decision, indicating what it confirms, modifies, or revokes of the appealed judgment.

Cassation judgments shall contain a summary of the challenged judgment; the specific exposition of the grounds and sub-grounds alleged and the considerations regarding each of the grounds or sub-grounds invoked by the appellant parties together with the analysis of the tribunal regarding the laws or legal doctrines that it deemed applicable to the case and, on such reasoning, the decision that is appropriate in law and doctrine.

When there is an award of fruits, interest, damages or losses, its amount shall be fixed in a liquidated sum.

If this is not possible, at least the bases, as requested, in accordance with which the liquidation is to be carried out in an incidental proceeding shall be established, or its amount shall be fixed by an expert, applying the procedure established by the Code of Civil and Commercial Procedure for expert evidence.

The judgment rendered to resolve the claim concerning a thing or a right does not prevent exercising a different claim with respect to the same thing or right.

A judgment rendered against a party does not prejudice a third party who has not had the opportunity to be heard and to defend themselves in the proceedings.

. The following shall be deemed executed judgments:

a)Judgments expressly consented to by the parties;

b)Judgments against which no appeal is filed within the time limit prescribed by law.

c)Judgments in respect of which an appeal has been filed but has been declared inadmissible or when lapse or abandonment occurs;

d)Those of second instance in matters that do not admit the appeal in cassation;

e)Those of second instance, when the appeal in cassation has been dismissed or declared inadmissible;

f)Those in cassation not pending clarification or amplification;

g)Any others declared irrevocable by mandate of law and those that admit no further appeal other than that of liability;

h)Awards, or decisions of the arbitrators, when in the deed of submission the appeals have been waived and the appeal in cassation has not been filed.

The provisions of this article shall govern orders.

The time limits for filing an appeal shall be counted from the day following the last notification of the entirety of the judgment or of the order in which the clarification or amplification is decided, as applicable.

There is res judicata when the judgment is final, provided there is identity of persons, things, claim and cause or reason for asking.

The judge who rendered it at first instance shall execute the judgment. In criminal matters, the provisions of the respective law shall apply.

Settlements and awards or judgments of arbitrators having executory force shall be enforced by the judge who should have heard the matter.

Agreements entered into in trial shall be enforced by the judge hearing the matter. If entered into on second instance, they shall be enforced by the judge who heard in the first instance.