Libro III Título I. Niñez y adolescencia amenazada o violada en sus derechos humanos

The following Trial Courts as are necessary shall be created in the Republic.

a)Of Childhood and Adolescence.

b)Of Adolescents in Conflict with Criminal Law.

c)Of Control of Execution of Measures; and,

d)Chamber of the Court of Appeals for Childhood and Adolescence.

The Supreme Court of Justice shall create the other instances necessary for effective compliance with the provisions contained in this Law.

The jurisdiction of the tribunals for Children and Adolescents and for Adolescents in Conflict with Criminal Law shall be specialized and shall have the organization provided by the Law of the Judicial Branch and other applicable legal norms, its personnel, as well as that of the Trial Court for Control of Execution of Measures, shall be specially qualified and shall include at least one psychologist, social workers and one pedagogue. They may avail themselves of the assistance of specialists from social assistance institutions and other public or private institutions, as well as interpreters of Mayan, Garifuna and Xinka languages, when necessary. They shall have the nature and categories of Trial Courts of First Instance.

For the composition of these tribunals, the sociocultural characteristics of the places where they will operate shall be taken into account.

To be a judge, magistrate or female magistrate for Children and Adolescents, the requirements demanded by the Political Constitution of the Republic shall be met. In addition, extensive knowledge and experience in human rights of children and adolescents shall be required.

The Chamber of the Court of Appeals for Children and Adolescents of the branch shall be composed of three (3) titular magistrates and one (1) alternate.

Territorial jurisdiction shall be determined:

1.For boys, girls and adolescents whose rights are threatened or violated:

a)By the domicile of the parents or persons responsible.

b)By the place where the boy, girl or adolescent is located, when the parents or the person responsible are absent.

c)By the place where the act occurred.

2.For adolescents in conflict with the law:

a)By the place where the act was committed.

The execution of the measure or measures shall be delegated by the judge who ordered the measure in accordance with:

a)The place where the authority designated by the judge is established.

b)The domicile of the parents or persons responsible.

c)The place where the entity sheltering the boy, girl and adolescent has its seat.

d)The place where the act occurred.

The following are powers of the Peace Trial Courts in matters of the rights of children and adolescents:

A) In matters of protection of the rights of children and adolescents:

a)To hear and decide requests for interim protective measures necessary for the cessation of the threat or violation of a human right of children and adolescents, with authority to order the measures established in subparagraphs e), g), h), and i) of Article 112 and the measure contemplated in Article 115.

b)To supervise the execution of the interim protective measures and final measures ordered by the Judge for Children and Adolescents when so requested.

c)Once the interim protective measure has been decreed, the file shall be referred, by the first working hour of the following day, to the competent Trial Court for Children and Adolescents.

B) In matters of adolescents in conflict with criminal law:

a)To hear, process, try and decide acts attributed to adolescents constituting misdemeanors, crimes against traffic safety and crimes whose maximum imprisonment penalty does not exceed three (3) years or consists of a fine penalty, under the Criminal Code or special criminal laws, in accordance with the specific misdemeanor trial procedure set forth in the Code of Criminal Procedure, respecting the special principles, rights and guarantees recognized to adolescents under this Law. In these cases, they are authorized to promote and authorize conciliation, remission and the opportunity criterion. Upon deciding, it may only impose the following sanctions:

i)Socio-educational:

1.Reprimand and warning.

2.Provision of community services, for a maximum period of two (2) months; and,

3.Repair of the damage.

ii) Guidance and supervision orders from among those contemplated in subparagraph b) of Article 238 of this Law and the deprivation of the driving permit contemplated in Article 246 of this Law.

iii) In all other cases they shall carry out the initial proceedings and shall hear, on a preventive basis, where there is no Judge for Adolescents in Conflict with the Law or where such judge is unavailable, due to schedule or for any other cause. Once the initial proceedings are exhausted, it shall remit the record to the Judge for Adolescents in Conflict with Criminal Law, with two copies.

b)In cases of flagrancy or presentation of the adolescent accused of the commission of an act classified as a crime, it shall rule on his or her legal and procedural status. He or she shall remain subject to the proceedings for adolescents in conflict with criminal law where the case so warrants; otherwise, it shall issue a decision for lack of merit and order immediate liberty.

c)If the adolescent remains subject to proceedings, it may order the appropriate coercive measure, in accordance with the provisions of this Law, and shall order the proceedings necessary for the clarification of the specific case, according to the nature of the crime.

In cases in which the Peace Judge hears on a preventive basis, he or she shall remit the record to the competent Judge for Children and Adolescents and Adolescents in Conflict with Criminal Law, by the first working hour of the following day. He or she shall record in a special register the cases heard in a final manner.

The powers of the Childhood and Adolescence Trial Courts are the following:

a)To hear, process and decide those facts or cases referred, reported or learned on its own initiative, which constitute a threat or violation of the rights of children and adolescents and in which, through a judicial decision, the violated right is restored or the threat or violation thereof ceases.

b)When necessary, to hear, process and decide all conduct that violates criminal law, attributable to boys or girls under thirteen (13) years of age, ordering the appropriate protection measures which, in no case, may involve deprivation of liberty.

c)To hear and decide the cases referred by the Municipal Boards for Comprehensive Protection of Children and Adolescents.

d)To forward the monthly statistical reports to whom it corresponds.

e)To carry out judicial review of the measure or measures ordered on a provisional basis.

f)Such other functions and powers as this Law or other laws assign to them.

The powers of the Trial Courts for Adolescents in Conflict with Criminal Law are the following:

a)To hear, process and decide, in relation to conduct that violates criminal law, attributable to adolescents.

b)To decide the measures applicable to adolescents, considering their integral development and their reintegration into their family or reference group.

c)To exercise jurisdictional control over the investigation conducted by the Public Prosecutor's Office.

d)To hear, review and approve the suspension of the procedure, the referral, the conciliation and the criterion of opportunity, when the requirements indicated by this Law concur.

e)To hear, process and decide matters relating to the civil action, when it has been brought, ruling in the judgment on the manner of restoring things to their prior state, the reparation for material and moral damage and the compensation for losses.

f)To forward the monthly statistical reports to whom they correspond.

g)To carry out judicial control of the measure or measures ordered provisionally.

h)To hear and decide the appeal remedies filed against the judgments rendered by the Justice of the Peace, within the scope of its jurisdiction, in accordance with the time limit and procedure established in this Law.

i)To certify the pertinent matters to the Public Prosecutor's Office, when the proceedings reveal the commission of an act constituting a crime or a misdemeanor.

j)Such other functions and powers as this Law or other laws assign to them.

The Measures Enforcement Control judges shall be assisted in their decisions by the psychologist, the pedagogue and the social worker of the Trial Court, having the following powers, according to their jurisdiction:

a)To control that the enforcement of any measure does not restrict fundamental rights not established in the final decision.

b)To oversee that the individual plan for the enforcement of the measures is in accordance with the objectives of this Law.

c)To carry out legality control of the enforcement of the measures.

d)To ensure that the rights of adolescents are not violated while they are serving the measures, especially in the case of internment.

e)To oversee that the measures are enforced in accordance with the provisions of the decision ordering them.

f)To mandatorily review, under their strict responsibility, every three (3) months, the sanctions imposed at an oral hearing, for which the judge shall summon the prosecutor, the defense counsel and the technical team responsible for the enforcement of the measure, and to rule on its confirmation, revocation or modification, stating the reasons for his or her decision. He or she shall review the measure when so requested by any of the parties or by the adolescent.

g)To control the granting or denial of any benefit related to the measures imposed in the final decision, which shall be processed by way of incident proceedings.

h)To visit and supervise, every six (6) months, the deprivation-of-liberty centers and the programs responsible for the enforcement of the measures located within the territory of their jurisdiction, ordering such measures as are necessary for the preservation and protection of the rights of adolescents deprived of liberty, and to report on the actions taken to the competent Children and Adolescents Chamber.

i)To request, where appropriate, periodic supervision of the adolescents.

j)Such other powers as this Law and other laws assign to them.

The powers of the Chamber of the Court of Appeals for Children and Adolescents are as follows:

a)To hear and decide the excuses and recusals arising from the application of this Law.

b)To oversee strict compliance with the time limits established by this Law.

c)To hear the appeals filed against the decisions rendered by the First Instance Judges of this branch.

d)To resolve conflicts of jurisdiction arising from the application of this Law.

e)To ensure that in adolescent deprivation-of-liberty centers the rights and guarantees provided for in the Constitution and in the international treaties and conventions on the matter ratified by Guatemala are respected.

f)To perform the other powers assigned to it by law.

The Solicitor General's Office, through the Solicitor's Office for Children and Adolescents, shall have the following powers:

a)To legally represent those boys, girls and adolescents who lack such representation.

b)To direct, on its own initiative or at the request of a party or of the competent Judge, the investigation of cases of boys, girls and adolescents threatened or violated in their rights; intervening actively in judicial protection proceedings. For such purpose, it shall have, at a minimum, one Solicitor for Children and Adolescents in the jurisdiction of each Childhood and Adolescence Trial Court.

c)To file the complaint before the Public Prosecutor's Office in cases of boys, girls or adolescents who have been victims of crime and who lack a legal representative, appearing in the criminal proceedings for the defense of their interests.

d)To attend hearings and issue legal opinions in all judicial, notarial and administrative proceedings specified by law, asserting the rights and guarantees that the Political Constitution, international treaties and agreements accepted and ratified by Guatemala, and this Law, recognize to children and adolescents.

The investigation of acts contrary to criminal law attributable to adolescents shall correspond to the Public Prosecutor's Office, through the specialized adolescent prosecutor's office.

Protection measures for boys, girls and adolescents shall be applicable whenever the rights recognized in this Law are threatened or violated.

The measures provided for in this section may be adopted separately or jointly, as well as substituted at any time.

In the application of the measures, the needs of the affected person shall be taken into account, with those aimed at strengthening family and community ties prevailing, observing respect for personal and cultural identity.

The Trial Courts for Children and Adolescents may determine, among others, the following measures:

a)Verbal or written admonition to the person responsible for the violation or threat to the human right of the boy, girl or adolescent.

b)Declaration of liability to the parents, guardians or persons responsible.

c)Referral of the family to official or community programs of assistance, guidance, support and temporary follow-up.

d)Order the enrollment of boys, girls and adolescents in official educational establishments and observe their school attendance and academic achievement.

e)Order medical, psychological or psychiatric treatment, under a hospital inpatient regime or outpatient treatment.

f)Order the parents, guardians or persons responsible, their inclusion in official or community assistance programs, entailing guidance, treatment and rehabilitation for any behavioral deviation, alcoholism or drug-addiction problems.

maternal, on the meaning of each of the

g)Provisional placement of the boy, girl or adolescent in a substitute family.

h)Temporary shelter of the boy, girl or adolescent in a public or private entity, in accordance with the particular circumstances of the case.

i)In case of crime or misdemeanor committed by an adult or adolescent, certify what is pertinent to a corresponding Trial Court.

In case of violations of economic, social and cultural rights, human rights organizations may intervene as parties in the proceedings.

Shelter shall be a provisional and exceptional measure, usable as a transitional form for the provisional or definitive placement of boys, girls and adolescents in a substitute family or home and shall in no case imply deprivation of liberty.

In case of maltreatment or sexual abuse committed by the parents or responsible persons, the competent authority may determine, as a precautionary measure, the removal of the aggressor from the home or the separation of the victim from his or her family nucleus according to the circumstances.

Children and adolescents whose rights are threatened or violated shall enjoy the following procedural guarantees:

a)To be heard in their language at all stages of the proceedings and to have their opinion and statements taken into account and considered in the decision issued by the Trial Court, with an interpreter being present where applicable.

b)Not to be sheltered in a public or private institution except by declaration of a competent authority, after exhausting the other placement options. Likewise, they may not, under any circumstances, be admitted to institutions intended for adolescents in conflict with criminal law, with public officials who fail to comply with this provision incurring liability.

c)To attend scheduled judicial hearings, accompanied by a social worker, psychologist or any other similar professional.

d)To receive clear and precise information in their language concerning procedural acts carried out in their presence, as well as the content and reasons for each of the decisions.

e)That all procedure be conducted without delay.

f)The justification and determination of the protection measure ordered. In the decision determining the protection measure, the judge shall explain to him or her, according to his or her age and maturity, the reason why this measure was selected.

g)A specialized jurisdiction.

h)Discretion and confidentiality of the procedural acts.

i)To have and select an interpreter where applicable.

j)Not to be separated from their parents or guardians against the will of the latter, except when the judge determines, after prior investigation of the background, that such separation is necessary in the best interests of the child, where the child is subjected to mistreatment or neglect.

k)To avoid being revictimized when confronted with their aggressor at any stage of the proceedings.

Judicial proceedings may be initiated:

a)by referral from the Municipal Board for the Protection of Children and/or the Trial Court of Peace.

b)on its own initiative or by complaint filed by any person or authority.

During the development of the proceedings, the judge shall take into account the procedural guarantees established in the preceding article.

Upon receipt of the file, the Childhood and Adolescence Judge shall immediately order the applicable interim protective measures provided for in Articles 112, 114 and 115 of this Law and shall set the day and time for the hearing, which shall be held within the following ten days. The parties shall be notified at least three days prior to the holding thereof, succinctly stating the grounds for the decision. In the event of a crime or misdemeanor committed against a boy, girl or adolescent, the Judge shall certify the pertinent matters to the appropriate authority.

On the day and time set for the hearing, the judge shall proceed as follows:

a)Shall determine whether the parties are present.

b)Shall instruct the boy, girl or adolescent in his or her mother tongue on the importance and meaning of the hearing. In matters that may cause him or her psychological harm, the judge may order his or her temporary removal therefrom.

c)Shall hear in order the boy, girl or adolescent, the representative of the Procuraduría General de la Nación, the representative of other institutions, involved third parties, physicians, psychologists, social workers, teachers or witnesses who have knowledge of the fact; and the parents, guardians or persons in charge. In the event of unjustified absence of the persons summoned to the hearing, what is appropriate shall be certified to a Trial Court of the criminal jurisdiction.

d)Having heard the parties and according to the seriousness of the case, the judge may propose a final solution; and if it is not accepted by the parties, the hearing shall be suspended, which must continue within a time limit of no more than thirty days. For this purpose, the parties shall be deemed notified. If it is necessary to notify another person, it shall be done within the three days following the suspension.

e)If the hearing is continued, the judge shall revoke, confirm or modify the interim protective measures ordered. Otherwise, he or she shall immediately issue the corresponding decision.

At any time during the proceedings, the judge, ex officio or at the request of a party, shall order the Procuraduría General de la Nación to carry out the steps to gather the information necessary to resolve the case.

The Office of the Attorney General of the Nation, in order to provide the judge with the required information, shall carry out or request, among others, the following proceedings:

a)Studies on the socioeconomic and family situation of the boy, girl and adolescent.

b)Medical and psychological reports on the parents, guardians or persons responsible.

c)To request from any involved institution or person any information that contributes to restoring the rights of the affected person.

Five days before the continuation of the hearing, the parties and the representative of the Office of the Attorney General of the Nation shall submit to the judge a report on the means of evidence gathered to be produced at the final hearing. In this proceeding the parties may propose the following means of evidence:

a)Declaration of the parties.

b)Declaration of witnesses.

c)Opinion of experts.

d)Judicial inspection.

e)Documents.

f)Scientific means of evidence.

On the day and time set for the continuation of the hearing, the judge shall proceed as follows:

a)Shall determine whether the parties are present.

b)Shall hear in order the boy, girl or adolescent, the representative of the Office of the Attorney General of the Nation, representatives of other institutions or third parties involved, professionals, witnesses and finally the parents, guardians or persons in charge.

c)Once the evidence has been received the judge shall declare the hearing concluded. Immediately thereafter the judge shall render the judgment evaluating the evidence on the basis of sound criticism, therein shall state and declare whether the rights of the boy, girl or adolescent are threatened or violated and the manner in which they shall be restored; therein shall confirm or revoke the precautionary measure ordered. If due to the complexity of the matter or the lateness of the hour it becomes necessary to defer the drafting of the judgment, the judge shall read only its operative part and shall explain in form day of its notification and may be made verbally This law shall apply to those who commit an act judgment shall be notified within the three days following the pronouncement of the operative part.

d)The judgment shall meet the requirements established by the Law of the Judicial Branch.

In the event that the declaration is affirmative, the judge shall:

a)Set a peremptory time limit within which the violated right or rights shall be restored.

b)Upon expiry of the time limit without the obligation having been complied with, what is appropriate shall be certified to the Public Prosecutor's Office for purposes of criminal action.

The judge who issued the final decision shall be in charge of ensuring its compliance; for such purpose, the judge shall request reports every two months to whom it may concern on compliance with the measures agreed for the protection of the boy, girl and adolescent.

The provisions or measures agreed by the respective Municipal Commission for Children and Adolescence may be reviewed, at the request of an interested party, by the corresponding Children and Adolescence judge.

Such appeal shall be filed verbally or in writing within the five days following its notification. The corresponding judge shall decide within a time limit of five days.

All decisions are revocable on its own initiative by the judge who issued them or at the request of a party, except those that terminate the procedure. The filing of the appeal may be made verbally or in writing, within forty-eight hours following its notification.

of the revocation. The judge or tribunal before whom the application for revocation is filed shall decide it without further proceedings, within the following twenty-four hours.

Unless otherwise provided, only the orders that definitively resolve the procedure or that determine the separation of the boy, girl and adolescent from their parents, guardians or persons in charge are appealable. The time limit for filing the appeal is three days following the or in writing before the Trial Court that heard the matter, which shall remit it together with the record to the Chamber of the Court of Appeals for Children and Adolescents.

The Superior Tribunal shall affirm, modify or reverse the appealed decision, only in the part that is the subject of the appeal, unless it necessarily requires modification of other points thereof as a consequence of what has been decided.

The Chamber of the Court of Appeals for Children and Adolescents shall schedule a hearing within a time limit of five days, for the parties to make use of the appeal and shall decide it within a time limit of three days. The decision shall be remitted with certification to the Trial Court of origin.

When the First Instance judge has denied the appeal, the interested party may resort de facto within three days of notification of the denial before the Chamber of the Court of Appeals for Children and Adolescents. Upon receipt of the de facto petition, the respective judge shall be required to remit the proceedings, which shall be forwarded within twenty-four hours. The De Facto Petition shall be decided within twenty-four hours of receipt of the proceedings.

If the De Facto Petition is dismissed, the proceedings shall be returned to the tribunal of origin without further action. If the de facto petition is granted, the procedure prescribed for the appeal shall be followed.