Título IV. Represión del lavado de dinero u otros activos y del financiamiento del terrorismo

Commits the crime of money laundering or other assets whoever, by himself or through an intermediary, intentionally:

a)Invests, converts, transfers or carries out any financial transaction with property or money, knowing that they are the product, proceed or originate from the commission of a crime with the purpose of concealing or disguising the illicit origin of the property;

b)Acquires, possesses, administers, holds or uses property or money, knowing that they are the product, proceed or originate from the commission of a crime;

c)Conceals or prevents the determination of the true nature, origin, location, disposition, destination, movement or ownership of property or money or of rights relating to such property or money, knowing that they are the product, proceed or originate from the commission of a crime.

Also commits the crime of money laundering or other assets whoever, by reason of his position, employment, trade or profession, intentionally permits or facilitates through a suitable action or omission, the performance of any type of transaction or operation, knowing that the property or money subject thereof are the product, proceed or originate from the commission of a crime.

If the crime of money laundering or other assets is committed by those who hold popularly elected positions, public official or public employee, on the occasion of the exercise of his office, he shall be punished with the corresponding penalty increased by one third, and other accessory penalties.

The crime of money laundering or other assets is autonomous and for its prosecution no indictment, judgment or conviction relating to the crime from which the property, money or other assets derive or originate is required.

Evidence of knowledge of the unlawful provenance or origin of the property, money or other assets, required in the crime of money laundering or other assets, may be established by any evidentiary means, in accordance with the Code of Criminal Procedure, Decree Number 51-92 of the Congress of the Republic, including inferences drawn from the objective circumstances of the case.

The person liable for the crime of money laundering or other assets shall be sanctioned with imprisonment of six (6) to twenty (20) years, non-commutable, plus a fine equal to the value of the economic benefit obtained through the commission of the crime, payment of costs and procedural expenses and publication of the relevant parts of the judgment in at least two media outlets of broad reach in the country.

If, upon completion of the imprisonment penalty imposed in a final judgment, the convicted person has not made effective payment of the fine, the competent judge shall order its conversion into an imprisonment penalty, in accordance with the parameters established in Article 55 of Decree Number 17-73 of the Congress of the Republic, Penal Code. In no case may the penalty resulting from the conversion exceed one-fourth of the originally imposed imprisonment penalty, nor be greater than two (2) years.

If the crime is committed by a foreign national, in addition to the penalties to which such person has become subject, the penalty of expulsion from the national territory shall be imposed, which shall be executed immediately after such person has served those penalties.

Legal persons shall be liable for the commission of the crime of money laundering or other assets, when: i) their directors, managers, executives, representatives, administrators, officers or employees participate, in the exercise of their functions or by reason thereof; ii) it originates from a lack of control or supervision, and the consequences of the crime are favorable to the legal person; or, iii) it results from a decision adopted by its decision-making body, within the normal or apparent course or purpose of its business.

The criminal liability of the legal person shall be independent of any liability that may correspond to its directors, managers, executives, representatives, administrators, officers or employees.

In this case, in addition to the sanctions applicable to the liable individuals, a fine of ten thousand dollars (US$ 10,000.00) to six hundred twenty-five thousand dollars (US$ 625,000.00) of the United States of America, or its equivalent in national currency, shall be imposed on the legal person, considering the gravity and circumstances of the crime, and it shall be warned that in case of recidivism the cancellation of its legal personality in a definitive manner shall be ordered.

The legal person shall also be sanctioned with payment of costs and procedural expenses and publication of the judgment in at least two of the mass media with broad reach in the country.

When dealing with legal persons subject to the surveillance and inspection of the Superintendency of Banks, the judge shall notify the respective conviction judgment to said supervisory body, so that it may proceed in accordance with the laws on the matter.

The financing of terrorism is considered a serious crime, a crime against humanity and against international law.

A person commits the crime of financing of terrorism who by whatever means, directly or indirectly, by himself or through an intermediary, deliberately provides, supplies, donates, collects, transfers, delivers, acquires, possesses, administers, negotiates or manages funds, money, economic resources, assets or any class of property, with the intention that the same be used or knowing that they will be used in whole or in part, in any of the following cases:

a)By a terrorist organization or structured or unstructured terrorist group, or individual terrorist with any purpose or aim, regardless of the country in which it is located, even without being linked to a specific terrorist act.

b)For the planning or preparation of acts of terrorism or the commission thereof within or outside the national territory.

c)For the recruitment, logistics, organization, transportation or for the equipping of one or more terrorists or terrorist organization or structured or unstructured terrorist group, within or outside the national territory.

d)For the travel of a person or persons to countries other than their countries of birth, nationality or residence, for the purpose of committing, planning, preparing or participating in acts of terrorism, or to provide or receive training for terrorism purposes.

For the crime of financing of terrorism to be deemed consummated, it shall not be necessary for the acts of terrorism to be carried out or to have been attempted. Nor shall it be necessary for the acts of terrorism to be carried out within the national territory, nor that an investigation, criminal proceedings have been initiated with respect thereto, or that a conviction judgment has been rendered thereon.

Evidence of the knowledge or intent referred to in the first paragraph of this article may be established by any evidentiary means, in accordance with the Code of Criminal Procedure, Decree Number 51-92 of the Congress of the Republic, including inferences drawn from the objective circumstances of the case.

A person also commits the crime of financing of terrorism who performs any of the acts established as financing of terrorism in the international agreements approved and ratified by the State of Guatemala.

A person guilty of this crime shall be imposed a non-commutable penalty of ten (10) to thirty (30) years imprisonment, plus a fine of twenty-five thousand dollars (US$ 25,000.00) to eight hundred thousand dollars (US$ 800,000.00) of the United States of America or its equivalent in national currency.

The crime of financing of terrorism shall not be justified in any circumstance by considerations of a political, philosophical, cultural, ideological, racial, religious or other similar nature.

Legal persons shall be liable for the commission of the crime of financing of terrorism, when: i) their directors, managers, executives, representatives, administrators, public officials or employees participate, in the exercise of their functions or by reason thereof; ii) it originates from the lack of control or supervision of the latter; or, iii) it is the result of a decision adopted by its decision-making body.

The criminal liability of the legal person shall be independent of that which may correspond to its directors, managers, executives, representatives, administrators, public officials or employees.

In this case, in addition to the sanctions applicable to the individually liable persons, a fine equivalent to the amount of the funds, money, economic resources, assets or any kind of property constituting the object of the crime shall be imposed on the legal person. In the case of proven repetition, cancellation of its legal personality in definitive form shall be ordered.

The legal person shall also be sanctioned with payment of costs and procedural expenses and publication of the judgment in at least two of the media outlets of wide reach in the country.

When dealing with legal persons subject to the supervision and inspection of the Superintendency of Banks, the judge shall notify said supervisory body of the respective conviction judgment, so that it may proceed in accordance with the laws on the matter.

Any person who transports from or to outside the Republic of Guatemala cash, traveler's checks or bearer securities, in an amount greater than ten thousand dollars (US$ 10,000.00) of the United States of America or its equivalent in national currency or any other currency, shall declare it before the customs authority, in the form or mechanism defined in the regulations of this Law.

Customs agents or agents of the National Civil Police may verify, by interview, the information declared pursuant to the preceding paragraph; they may likewise inspect or search the baggage, vehicles, containers or shipments of passengers and legal persons, as applicable, as well as the passenger himself.

In the event of 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 civil forfeiture action contemplated in the law on the matter.

The regulations of this Law shall develop the mechanisms to facilitate effective compliance with the provisions of this article, as well as the referral of the corresponding information to the authorities defined therein, with all competent public institutions and agencies being authorized to enter into interinstitutional cooperation agreements among themselves.

Commits the crime of money smuggling whoever fails to declare before the competent customs authority in the corresponding form or mechanism that they transport from or to outside the Republic cash or in bearer negotiable documents, for a sum greater than ten thousand dollars (US$ 10,000.00) of the United States of America, or its equivalent in national currency or any other currency.

The person liable for this crime shall be sanctioned with imprisonment of one (1) to three (3) years.

Those found liable for participating in the proposition or conspiracy or attempt to commit the crimes of money laundering or other assets, financing of terrorism or money smuggling, shall be punished with the penalty of imprisonment, reduced by one third, and the other accessory penalties prescribed for the perpetrator of the completed crime.

For the purposes of this Law, forfeiture consists of the loss, in favor of the State, of the property, money, funds, instruments or proceeds used in or derived from the commission of the crimes of money laundering or other assets, financing of terrorism or money smuggling declared in judgment, unless they belong to, or are securing financial obligations in favor of, a third party not liable for the act.

Where the aforementioned objects are for prohibited use or are not of lawful commerce, forfeiture shall be ordered, even if the existence of the crime or the culpability of the suspect or accused is not declared, or it is unknown who is the person liable for the crime.

What is established in the preceding article, with respect to forfeiture, shall apply only when it is declared in the judgment by the competent tribunal that the civil forfeiture action does not proceed, in the manner provided in the law on the matter, which has precedence over this Law.

In the criminal prosecution of the crimes and execution of the penalties established in this Law, the procedure prescribed in the Code of Criminal Procedure, Decree Number 51-92 of the Congress of the Republic for crimes of public action shall apply.

Due to the nature of the crimes contemplated by the present Law, in observance of the provisions of the Political Constitution of the Republic of Guatemala, the steps taken and actions carried out in the course of the preparatory procedure of the criminal proceedings shall be confidential with respect to third parties.

Under no circumstances may confidential actions be established with respect to the parties and the persons under investigation or accused, and therefore there may be no obstacle whatsoever to exercising the right of defense of a party named in the proceedings, under penalty of nullity of everything done.

The judge or tribunal hearing the proceedings may order at any time, without prior notice or hearing, any interim protective measure or guarantee measure established by law, aimed at preserving the availability of the property, money, funds, documents, bank accounts, assets, economic resources and instruments originating from or related to the crime of money laundering or other assets or financing of terrorism, when requested by the Public Prosecutor's Office. This request shall be heard and decided by the judge or tribunal immediately.

In case of danger due to delay, the Public Prosecutor's Office may order any interim protective measure, including the seizure, immobilization or freezing of property, money, funds, documents, bank accounts, assets, economic resources and instruments, and shall request judicial validation within a maximum time limit of three (3) days, counted from the adoption of the measure, attaching the respective inventory thereof and indicating the place where they are located.

If the Public Prosecutor's Office does not request judicial validation within the established time limit, the interim protective measure shall cease to have effect and the immediate return or release of the property, money, funds, documents, bank accounts, assets, economic resources and instruments shall proceed, the prosecuting agent who failed to comply with said obligation being liable for such omission, in accordance with the law.

If the judge or tribunal does not confirm the interim protective measure, the judge or tribunal shall order in the same act the return or release of the property, money, funds, documents, bank accounts, assets, economic resources and instruments subject thereto. Likewise, if the judge or tribunal does not rule within the five (5) working days following the validation request, the measure shall cease to have effect by operation of law, and the Public Prosecutor's Office shall proceed to the immediate return or release of the property.

The property, money, funds, documents, bank accounts, assets, economic resources and instruments subject to interim protective measures shall remain in the custody of the Public Prosecutor's Office or of the person designated by it, who shall be responsible for their preservation for their incorporation into the proceedings.

The ordered interim protective measures may be reviewed, revoked or modified at any time by the judge or tribunal that ordered them, upon request of a party, in all cases guaranteeing the right to a hearing.

When it is not possible to establish the holder of the ownership right or of any other right in rem over the property, money, funds, assets, economic resources and instrumentalities of the crime of money laundering or other assets or of the crime of financing of terrorism subject to interim protective measures, or these are not claimed within a time limit of three (3) months, the judge may, following a prior hearing to those who, according to what appears in the record, may have a legitimate interest therein, authorize the temporary use of said property, funds, assets, economic resources and instrumentalities to the authorities in charge of suppressing, investigating and prosecuting the crimes of money laundering or other assets or of financing of terrorism.

Matters relating to the interim protective measures referred to in the preceding articles shall apply except for the rights of third parties in good faith.

The judge or tribunal of the case may order the return, as a deposit during the proceedings, to the claimant of the property, funds, money, documents, bank accounts, assets, economic resources and instruments of lawful commerce, when it has been proved and concluded in incidental proceedings that:

a)The claimant has a legitimate right with respect to the property, funds, money, documents, bank accounts, assets, economic resources and instruments;

b)The claimant cannot be imputed with any type of participation, collusion or involvement with respect to the crime of money laundering or other assets or financing of terrorism, subject of the proceedings;

c)The claimant did not acquire any right to the property, funds, money, documents, bank accounts, assets, economic resources and instruments from the defendant under circumstances that would reasonably lead to conclude that the right thereto was transferred to the claimant to avoid their eventual subsequent forfeiture; and,

d)The claimant did everything reasonable to prevent the illegal use of the property, money, funds, documents, bank accounts, assets, economic resources and instruments.

The claimant shall have the obligation to exhibit such property, funds, money, documents, bank accounts, assets, economic resources and instruments, when so requested by the competent judge or tribunal or the Public Prosecutor's Office.

The crimes provided for in this Law shall give rise to active or passive extradition in accordance with the Political Constitution of the Republic of Guatemala, the international agreements and treaties approved and ratified by the State of Guatemala and the legislation in force.

The competent authorities of Guatemala shall deny refugee or asylee status to persons who have committed the crimes of terrorism or financing of terrorism, or who have knowingly collaborated in the commission of such crimes or with terrorist groups or organizations.

In order to facilitate the judicial proceedings and investigations relating to the crimes referred to in this Law, the Public Prosecutor's Office and the corresponding judicial authorities may provide and request assistance to and from the competent authorities of other countries, in accordance with the corresponding legal procedures, for:

a)To receive testimony or take statements from persons.

b)To present judicial documents.

c)To conduct inspections and seizures.

d)To examine objects and places.

e)To provide information, elements of conviction or means of evidence.

f)To deliver originals or certified or legalized copies of documents and files related to the case, including banking, financial and commercial documentation.

g)To identify or detect the proceeds, instrumentalities and other objects of the crime, whether for probative purposes or to order the interim protective measures ensuring the recovery thereof.

h)To establish the identity, whereabouts, activities and property of the persons with respect to whom there is reasonable suspicion that they participate in the crimes established in this Law.

i)Any other form of reciprocal judicial assistance authorized by domestic law or established in agreements and international treaties approved and ratified by the State of Guatemala.

Persons who are detained or serving a sentence in the national territory may be temporarily transferred to another State, provided there is judicial authorization and provided it is for purposes of giving testimony or identification, or to help obtain elements of conviction or means of evidence necessary for the investigation or prosecution of the crimes established in this Law. For such purpose, the following conditions must be met:

a)That the person freely gives consent, once informed; and,

b)That both States agree, subject to the conditions they consider appropriate, especially with regard to the duration of the proceeding.

For purposes of this article, the competent authorities of Guatemala, under their strictest responsibility, shall ensure compliance with the following requirements:

1.The requesting State shall be authorized and obligated to keep such person detained and in proper custody, unless the State of Guatemala requests or authorizes otherwise.

2.The requesting State shall without delay fulfill its obligation to return such person to the custody of the State of Guatemala.

3.The requesting State may not require the State of Guatemala to initiate extradition proceedings for the return of such person.

4.The time the person has remained detained in the requesting State shall be taken into account for purposes of deducting it from the penalty to be served in the State of Guatemala.

5.The person shall not be subjected to any other restriction of his or her personal liberty in the territory of the requesting State, in relation to acts or convictions prior to his or her departure from the territory of the State of Guatemala.

6.The cost of transfer, custody and security of the persons to be transferred shall be borne by the requesting State.

The State of Guatemala is empowered to promote the conclusion of agreements with other States in this matter.

The Public Prosecutor's Office and any other competent authority may provide and request assistance and collaboration to competent authorities of other countries, in accordance with their functions and powers, in order to facilitate the proceedings they must carry out to fulfill the object of this Law, applying the provisions established in agreements and international treaties approved and ratified by the State of Guatemala.

The Guatemalan Migration Institute shall prohibit the entry, transit or stay of foreign nationals in the country, when they are designated on the lists issued and maintained by the United Nations Security Council and its subsidiary bodies, related to terrorism, terrorist financing or financing of the proliferation of weapons of mass destruction.

For purposes of the foregoing, the Guatemalan Migration Institute shall establish the necessary mechanisms so that, at all migration control posts and offices under its responsibility, timely information is available to comply with the provisions of the preceding paragraph.

The Guatemalan Migration Institute shall immediately report, without exceeding the time limit of seventy-two hours, any decision taken in this regard, resulting from the application of the provisions of this article, to the following entities: the Ministry of the Interior, the Superintendency of Banks through the Special Verification Intendency and the Secretariat of Strategic Intelligence of the State through the communication mechanism they establish in accordance with the regulation of this Law.

The provisions of the first paragraph of this article shall not apply when the entry, transit or stay of the person designated by the United Nations Security Council or its subsidiary bodies is strictly necessary for judicial proceedings before the country's jurisdictional bodies or for the serving of sentences, with the respective judicial decision required for such purpose, or for humanitarian reasons, in accordance with international humanitarian law.

Every natural or legal person is prohibited from supplying, in its entirety or jointly, funds, assets or any type of resources or financial services to persons designated in the lists issued and maintained by the United Nations Security Council or its subsidiary bodies, linked to terrorism, terrorist financing or financing of the proliferation of weapons of mass destruction; as well as to legal persons controlled, directly or indirectly, by designated persons and to natural or legal persons acting on behalf of or under the direction of persons designated by the United Nations Security Council or its subsidiary bodies. The foregoing shall be applicable, unless licenses or authorizations exist, issued by the United Nations Security Council.

Contravention of the provision established in the preceding paragraph shall cause the Public Prosecutor's Office, upon becoming aware by complaint or by any other means, to initiate an investigation to determine the existence or not of facts that may constitute a crime.

Every natural person or legal person located in the national territory, designated in the lists issued and maintained by the United Nations Security Council and its subsidiary bodies, related to terrorism, terrorist financing or financing of the proliferation of weapons of mass destruction, may request its exclusion from said lists, in accordance with the procedure established by the Office of the Ombudsman of the United Nations Security Council.

The Ministry of Foreign Affairs shall forward to the corresponding authority the communications it receives from the United Nations Security Council and its subsidiary bodies related to terrorism, financing of terrorism or financing of the proliferation of weapons of mass destruction.