The Congress of the Republic of Guatemala,
WHEREAS:
The Political Constitution of the Republic of Guatemala
guarantees the life, integrity and development of the human person,
considers the health of the citizens to be a public asset, and
declares action to combat drug addiction to be of social
benefit;
The State of Guatemala has acceded to, signed and ratified
several international treaties that commit it to combating drug
trafficking and all activities relating to the production,
manufacture, use, possession and marketing of or traffic in
narcotic or psychotropic substances and drugs;
In recent years, our country has been the victim of widespread
illicit drug-trafficking activities but to date does not possess
appropriate legislation to deal generally and fundamentally with
this problem, which is harming not only the population but also the
very rule of law and the institutional fabric of the country;
THEREFORE:
In the exercise of the powers conferred upon it by article 171,
paragraph (a), of the Political Constitution of the Republic of
Guatemala,
HEREBY DECREES:
the following
LAW AGAINST DRUG-RELATED ACTIVITIES
In order to protect health, the adoption by the State of the
necessary measures to prevent, control, investigate, avert and
penalize all activities relating to the production, manufacture,
use, possession and marketing of or trafficking in narcotic or
psychotropic substances and other drugs or pharmaceuticals capable
of causing alterations or changes in the central nervous system,
whose use can produce physical or psychological dependence and
which are included in the relevant international treaties and
conventions ratified by Guatemala or in any other international
legal instrument adopted in that respect, is declared to be in the
public interest.
For the purposes of this Law, the following expressions shall
have the meanings indicated:
- Drugs:
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Any pharmacological agent or substance which, when introduced
into the body of a living person, changes its physiological
functions and alters the state of consciousness.
Drugs shall also be regarded as the seeds, flowers, plants or
parts thereof, and any other substance from which they may be
extracted.
The provisions of this Law shall not apply to alcoholic
beverages or tobacco;
- Narcotic and psychotropic substances:
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Any drug, whether natural or synthetic, which is regarded as
such in international treaties or conventions whose observance is
binding on the Republic of Guatemala, in the Public Health Code and
in any other provisions issued for the purpose of specifying drugs
whose use is prohibited hereunder;
- Addiction:
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Physical or psychological dependence, the former being
understood to mean a person's compulsionto take drugs, whose
withdrawal causes physical and/or bodily disorders, the latter an
urge to use drugs on a regular and continuing basis in order to
suppress a psychological affliction;
- Illicit traffic:
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Any act involving the production, manufacture, extraction,
preparation, offering, distribution, storage, warehousing,
transport, sale, supply, transit, possession, purchase or holding
of any narcotic drug or psychotropic substance without lawful
authorization;
- Consumption:
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Occasional, periodic, habitual or permanent use of a substance
referred to in this Law;
- International transit:
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The import, export, supply or movement of narcotic drugs or
psychotropic substances from one country to another, in whatsoever
manner, by the perpetrator of the offence;
- Precursors:
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The raw material or any other unprocessed, semi-processed or
processed substance used for the preparation of narcotic drugs or
psychotropic substances;
- Property:
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Assets of any kind, whether material or immaterial, movable or
immovable, tangible or intangible, and legal instruments or
documents certifying ownership of or other rights with respect to
such assets;
- Instrumentalities and objects of the offence:
-
Instrumentalities are the tools used to commit offences under
this Law; objects of the offence are the narcotic and psychotropic
substances or drugs and precursors derived from offences under this
Law;
- Commission:
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the National Commission on Drug Addiction and Trafficking.
Authorization may be granted solely for the import, production,
manufacture, extraction, possession and use of drugs, by lawfully
entitled persons only, under their strict responsibility, in
quantities strictly necessary, for purposes of medical treatment,
toxicological and pharmacological analyses, scientific research and
the production of medicines.
The sale of drugs at points of distribution to private
individuals shall require a medical prescription.
Establishments lawfully engaged in the marketing, retailing,
processing, manufacture, analysis, refining, transformation,
extraction, dilution, packaging, preparation, production, import,
export, supply or storage of solvents or substances that may be
used as precursors in the processing of addictive narcotic drugs or
psychotropic substances shall obtain authorization from the
Ministry of Public Health and shall undergo any controls and
inspections which that Ministry may carry out.
It shall be the duty of the State to provide the necessary
economic resources for rehabilitation treatment of addicts and to
promote their social reintegration.
Collective legal entities of a social, informational, cultural,
recreational, sporting, religious or any other nature shall
cooperate in drug abuse control programmes. All persons shall
cooperate in preventing offences under this Law and illicit drug
use.
It shall be the duty of the State, through its competent organs,
to promote international, technical and economic cooperation with a
view to strengthening and coordinating strategies between States
and research, prevention, punitive and rehabilitation programmes
regarding narcotic and psychotropic substances and drugs, and to
conclude treaties, conventions and agreements with a view to
improving the effectiveness of such cooperation and
coordination.
In order to improve air and sea monitoring and increase the
capacity to control the international traffic in illicit drugs, the
State of Guatemala shall grant full tax exemption on the import of
radar equipment and any other instruments used to control
drug-related activities.
Any persons who take part in the commission of an offence,
provide assistance or help, beforehand or subsequently by any act
without which the offence could not have been committed, make
promises prior to its perpetration or aid or abet its commission or
completion shall be deemed to be perpetrators of offences under
this Law.
Anyone who uses his position of seniority to induce a
subordinate by means of general orders whose scope is prohibited by
this Law shall also be deemed to be a perpetrator.
Corporate entities shall, regardless of the criminal liability
of their representatives, be held responsible for offences under
this Law where involving acts carried out by their regular agents,
provided that such acts come within the normal or apparent course
or object of their business.
Any persons who in any way, voluntarily assist the commission of
an offence or who provide help subsequent to an offence by virtue
of promises made before it was perpetrated shall, if the assistance
does not amount to perpetration, be deemed to be accomplices.
The main penalties applicable to individuals for offences under
this Law shall be:
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(a) Death;
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(b) Imprisonment;
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(c) Fine;
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(d) General or specific
disqualification;
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(e) Confiscation, forfeiture or destruction of objects of the
offence and of instrumentalities used for its commission, unless
they belong to a third party who is not responsible for the offence
or who acted in good faith;
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(f) Expulsion of aliens from the national territory;
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(g) Payment of expenses and costs of the proceedings;
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(h) Publication of the conviction.
The penalties provided for under this Law for corporate entities
shall be:
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(a) Fine;
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(b) Cancellation of corporate status;
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(c) Total or partial suspension of activities;
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(d) Confiscation, forfeiture or destruction of objects of the
offence and of instrumentalities used for its commission;
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(e) Payment of expenses and costs of the proceedings;
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(f) Publication of the verdict.
Any persons on whom a fine is imposed who fail to pay it within
the statutory period or who fail to make the repayments due in
settlement thereof shall serve a custodial sentence, whose term
shall be calculated on the basis of between Q 5.00 and Q 100.00 per
day, according to the nature of the offence and the quantity of the
drug seized. If a sentence of imprisonment was also imposed, the
conversion shall begin once that sentence has been completed, but
no person shall serve a prison sentence of more than 30 years.
The convicted offender may at any time, pay the fine less the
portion corresponding to the time spent in prison. If, upon
completion of the prison sentence, the offender's conduct has been
satisfactory, the competent judge may order the conditional
suspension of the fine. Any application to that effect shall be
dealt with as an interlocutory plea.
The penalties set out in articles 36, 39, 43, 44, 49, 50 and 51
of this Law may be commuted if the term of imprisonment does not
exceed five years. The commutation shall be calculated on the basis
of a minimum of Q 5.00 per day to a maximum of Q 100.00 per day,
having regard to the circumstances of the offence, the offender's
economic situation and the amount of the seized objects of the
offence.
If a person is sentenced to a term of imprisonment not exceeding
three years, the penalties imposed may be conditionally suspended,
without prejudice to compliance with any disciplinary measures or
order to pay compensation. The benefit of this clause shall be
granted if the enforcement of the penalty is inappropriate or
unnecessary by reason of the particular features of the case or the
legal capacity of the offender. This provision shall not apply if
the sentence has already been reduced in accordance with article 22
of this Law.
In granting this benefit, the judge may impose one or more of
the following rules of conduct on the offender:
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(a) To reside or not to reside at a specific place and to
undergo the supervision of the court;
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(b) To be barred from frequenting certain places or associating
with certain persons;
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(c) To refrain from the use of narcotic drugs and from the abuse
of alcoholic beverages;
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(d) To begin and complete primary education, if applicable, to
learn a trade or occupation, or to attend training courses at the
location or institution fixed by the court;
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(e) To undergo medical or psychological treatment, if
necessary.
In pronouncing sentence, the judge shall fix the specific terms
of enforcement and duration of the application of the rules of
conduct imposed, which may not exceed five years. The probationary
period relating to conditional suspension may not be less than two
years or more than four years.
If the offender unjustifiably departs from the rules of conduct
imposed or commits a deliberate crime during the probationary
period, the suspension shall be revoked and he shall serve the rest
of the sentence.
Weapons, objects, money, vehicles, buildings or assets used in
the commission of offences under this Law or derived therefrom or
acquired by means of assets obtained from the commission of such
offences, shall be confiscated.
If objects or vehicles used to commit offences under this Law
are not owned by the persons involved, they shall be returned to
their lawful owner if he is held to be free from responsibility.
Confiscation shall be ordered, in cases of conviction or acquittal,
if the use of the objects in question is prohibited or if they may
not be lawfully traded.
Confiscated objects which may be lawfully traded shall be sold
and the proceeds of the sale shall be paid into the Judiciary's own
funds, but shall be allocated specifically for use in the control
and prevention of offences under this Law.
When seized drugs or substances are no longer required for the
purposes of the proceedings, the examining magistrate shall order
their destruction.
For the purposes of the destruction, the magistrate shall
personally attend the act of destruction and recheck the
circumstances of the confiscation and the appropriate method of
destruction. The act may be attended by the parties but shall
necessarily be attended by a representative of the Department of
Public Prosecution and a person delegated by the Commission, who
shall both be duly summoned to attend and in whose presence the
destruction shall take place at the place, date and time previously
stated.
The examining magistrate shall retain a sample of the destroyed
drug as procedural evidence of the existence of the offence,
preserving it in safekeeping under his responsibility and in
conditions of maximum security, and shall hand it over to the
sentencing court, which shall order the destruction of the drug,
when the final verdict becomes enforceable, with full
responsibility.
Accomplices shall be liable to the penalty laid down for
perpetrators, possibly reduced by one third at the discretion of
the judge. This provision shall also apply to the perpetrator of an
attempted offence.
The following shall be considered to be special aggravating
circumstances in connection with offences under this Law:
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(a) If the offence affects or may affect minors, pregnant women,
or persons suffering from mental illness or physical
disabilities;
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(b) If the perpetrator has encouraged the use or consumption of
drugs at educational establishments, centres for the protection and
recreation of children, military units, or detention centres or
penal institutions, or if the perpetrator is the owner or manager
of facilities used for social, cultural, recreational, sporting or
any other purposes;
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(c) If the perpetrator is responsible for the prevention or
prosecution of offences under this Law;
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(d) If the perpetrator is a public official or employee, uses
arms or carries on an occupation directly connected with public
health.
In the aforementioned cases, the punishment may be increased up
to twice the maximum punishment indicated for the offence
committed.
The punishment may be reduced to one quarter of the minimum
indicated in this Law in the following cases:
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(a) If the perpetrator of offences under this Law or their
accomplices or accessories voluntarily provide the competent judge
in addition to information regarding their own participation, with
information that may assist in the establishment of offences under
this Law or in the arrest of their perpetrators, or if the
perpetrator informs the authorities of facts known to him regarding
plans to commit such offences, in time to prevent them from being
committed;
-
(b) If, during the proceedings or the trial, and prior to the
verdict, the accused provides important information that makes it
possible to seize or confiscate drugs or proceeds of crimes
connected with offences under this Law.
The application of the benefit provided for in this article may
not exceed one quarter of the minimum penalty for the sentence
imposed.
Remedial and corrective measures shall be applied:
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(a) If circumstances render it impossible to impose a punishment
owing to the absence of criminal responsibility;
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(b) If a repetition of offences under this Law gives reason to
presume a continuation of criminal practices or the pursuit of
criminal activities endangering society or property legally
protected by this Law.
The remedial and corrective measures shall be discontinued when
the circumstances that gave rise to their imposition cease to be
present. However, they shall be reviewed each year.
The competent courts, when trying offences under this Law, may
impose the following remedial measures:
-
(a) Special internment. This shall involve the internment
of persons not criminally responsible for their actions at an
appropriate place for them to receive care and therapy. The judge
may, if he deems it advisable, impose an obligation to undergo
out-patient treatment, setting the requirements to be fulfilled by
the person undergoing such treatment, under the supervision of the
court;
-
(b) Labour. Re-offenders, habitual offenders and
dangerous persons may be sentenced to a special labour regime at
one of the country's prison farms;
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(c) Special prohibitions. A ban on residing in a specific
place or frequenting specific places may be imposed.
The commission of any of the offences under this Law shall give
rise to an obligation to provide compensation for any serious
material and moral harm caused to society. The obligation shall be
jointly and severally incumbent on all parties responsible for the
offence, be they individuals or corporate entities, and shall take
the form of monetary compensation, to be fixed by the judge when
pronouncing the verdict, and shall be enforced by order of the
sentencing court of first or sole instance. If the offence was
committed by a corporate entity, the individuals who served as its
decision-making organs shall, with the exception of those free from
guilt, be jointly and severally liable. Similarly, a corporate
entity shall be jointly and severally liable for offences committed
by its representatives in all cases where it directly or indirectly
derived any benefit therefrom.
Anyone who has derived economic benefit from the proceeds of an
offence, even if he was not involved in its commission, shall be
liable to pay compensation up to the amount of his gain. Cases of
manifest good faith in regard to all participants in the offences
shall be excepted.
The provision of compensation for harm caused to society by
reason of the offence shall take precedence over any other debt,
the enforcement of penalties and the payment of fines.
In calculating the material and moral harm caused to the public,
account shall be taken of:
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(a) The value of the drugs seized;
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(b) The value of property connected with the offence and of
objects or instrumentalities used in the unlawful act;
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(c) The scale of the national or international association to
which the offender belongs;
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(e) The capacity to produce, manufacture, cultivate or traffic
in drugs;
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(f) The seriousness of the offence committed;
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(g) The financial harm suffered by society as a consequence of
the investment in resources to control drug-trafficking
activities.
Liability to pay compensation by reason of offences under this
Law shall pass to all the heirs of the person responsible, up to
the amount of the inheritance received.
The Department of Public Prosecution, representing society,
shall bring a civil action jointly with the penal action and both
shall be instituted in accordance with the rules of criminal
procedure.
The civil action shall be subsidiary to the penal action and the
judge shall rule on them in the same verdict immediately after
deciding the penal matter. If the penal action is terminated or
discontinued, by reason of death or absence of criminal
responsibility, before the final pronouncement of the verdict, the
Department of Public Prosecution shall pursue or continue such
action before the competent courts.
The damages fixed by the judge in favour of the State shall be
paid into the Judiciary's own funds for specific allocation to the
investigation of offences under this Law, and to prosecution,
punishment and social reintegration of persons committing such
offences.
If, when the case is to be ruled on, the amount of the damages
has not been established, fully or in part, such damages shall be
determined by the competent court, in its sentence, on the basis of
the factors specified in this chapter for calculation thereof.
Any third parties injured by reason of any of the offences under
this Law may claim damages from the accused, and such damages shall
be convened into pecuniary compensation for personal material or
moral harm and total or partial repair or restitution of the
objects or instrumentalities of the offence, subject to proof of
ownership thereof and provided that they may be lawfully
traded.
Anyone who without authorization participates in any manner in
the international transit of narcotic or psychotropic substances or
drugs, or precursors or essential substances intended for the
manufacture or dilution of such drugs, shall be punished by a term
of imprisonment of between 12 and 20 years and a fine of between
50,000 quetzals and 1,000,000 quetzals.
Anyone who without lawful authorization sows, cultivates or
harvests seeds, flowers, plants or parts thereof from which it is
possible, naturally or by any means, to obtain drugs that produce
physical or psychological dependence, shall be punished by a term
of imprisonment of between five and 20 years and a fine of between
Q 10,000.00 and Q 100,000.00.
Anyone who without lawful authorization produces, manufactures,
processes, extracts or obtains drugs shall be punished by a term of
imprisonment of between eight and 20 years and a fine of between Q
50,000.00 and Q 1,000,000.00.
Anyone who without lawful authorization acquires, disposes of in
whatsoever manner, imports, exports, stores, transports,
distributes, supplies, sells, retails or carries on any other
activity connected with the trafficking in seeds, leaves, plants,
flowers or substances or products classified as narcotic or
psychotropic substances or drugs or precursors shall be punished by
a term of imprisonment of between 12 and 20 years and a fine of
between Q 50,000.00 and Q 1,000,000.00. Anyone who provides the
means, or who facilitates or permits the landing of aircraft used
for illicit trafficking, shall be liable to the same
punishment.
Anyone who for his own use acquires or possesses any of the
drugs referred to in this Law shall be punished by a term of
imprisonment of between four months and two years, and a fine of
between Q 200.00 and Q 10,000.00. The drug seized shall be deemed
to be for his own use if it does not exceed a reasonable quantity
for immediate consumption, provided that the other circumstances of
the case give grounds for the belief that the drug is for personal
use.
Anyone who in any way aids or abets the illicit cultivation of
or trafficking in seeds, leaves, flowers, plants or drugs, or the
manufacture, extraction, processing or production thereof, or
incites others to their illicit use, shall be punished by a term of
imprisonment of between six and ten years and a fine of between Q
10,000.00 and Q 100,000.00.
Anyone who possesses, manufactures, transports or distributes
equipment, materials or substances in the knowledge that they will
be used in any of the activities referred to in the preceding
articles shall be punished by a term of imprisonment of between
five and ten years and a fine of between Q 10,000.00 and Q
100,000.00.
The same punishment shall be imposed on anyone who, in
whatsoever manner, furnishes, provides, uses or assigns any
building, premises or establishment for the manufacture,
production, extraction, storage, cultivation, sale, supply or
consumption of drugs. If the establishment is a commercial one, it
shall be closed.
Anyone who alters or falsifies medical prescriptions, wholly or
in part, and thereby obtains, for himself or for another person,
drugs or medicines that contain drugs shall be punished by a term
of imprisonment of between four months and two years and a fine of
between Q 200.00 and Q 10,000.00. The same punishment shall be
applied to anyone who, for non-therapeutic purposes or without a
medical prescription, administers any type of drugs to another
person with the consent of that person. If the person does not give
his consent or is aged under 18 years, the punishment shall be a
term of imprisonment of between three and six years and a fine of
between Q 5,000.00 and Q 100,000.00.
Anyone authorized to retail medicinal substances that contain
drugs who retails them in a form, quality or quantity different
from that specified on the medical prescription, or without a
medical prescription, shall be punished by a term of imprisonment
of between three and five years and a fine of between Q 2,000.00
and Q 10,000.00.
Any physician who, in breach of the relevant laws or
regulations, prescribes or supplies drugs that require a
prescription when they are not indicated for treatment purposes
shall be punished by a term of imprisonment of between three and
five years, a fine of between Q 200.00 and Q 10,000.00 and
disqualification from carrying on his profession, which additional
punishment may not exceed the duration of the custodial
punishment.
Anyone who, personally or through an intermediary, whether an
individual or a corporate entity, carries out business transactions
with other persons or commercial, banking, financial or any other
establishments, using money or proceeds derived from illicit
activities under this Law, regardless of the place on national or
foreign territory where the offence was committed or where such
financial resources were generated, shall be punished by a term of
imprisonment of between six and 20 years and a fine of between Q
50,000.00 and Q 5,000,000.00. The same punishment shall be applied
to:
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(a) The intermediary, owner, legal representative or
administrator, or manager of the establishment who authorized,
permitted or carried out such transactions knowing the illicit
source of the money or proceeds;
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(b) Anyone who participates in acts or contracts, whether real
or simulated, relating to the purchase, possession, transfer or
administration of property or assets with the aim of concealing,
disguising, simulating or diluting the financial resources obtained
as a result of the illicit activities referred to in this Law;
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(c) Anyone, other than the persons mentioned in the preceding
subparagraph, who, knowing the illicit origin of the money or
proceeds, authorizes, permits or carries out the transactions
referred to in this article by taking advantage of his office,
position or post shall be punished by a term of imprisonment of
between five and ten years and a fine of between Q 10,000.00 and Q
1,000,000.00. Corporate entities or individuals who report to the
Department of Public Prosecution transactions conducted by them in
excess of 50,000 quetzals shall be deemed not to have committed
this offence. Such reports may be used only for the purposes of
this Law.
For the purposes of this Law, the monies or proceeds shall be
presumed to have been derived from transactions connected with
offences under this Law if they have been acquired or negotiated
within a period of three years preceding the related prosecution.
Since the law may not be applied retroactively, such period shall
be computed from the time when this Law comes into force.
Any individuals who belong to groups or associations formed of
two or more people for the purpose of sowing, cultivating,
producing, refining, marketing, selling, transporting, holding,
distributing, storing, importing, exporting, receiving, supplying
or trafficking in narcotic or psychotropic substances or drugs, or
products derived from them or intended for their preparation, as
well as any other illicit activity relating thereto, shall be
punished, through this fact alone, by a term of imprisonment of
between six and ten years and a fine of between Q 1,500.00 and Q
3,000.00. Anyone who promotes, directs, finances or in any manner
performs any act without which neither the organization nor the
activities of such groups or associations could be undertaken shall
be punished by a term of imprisonment of between 10 and 20 years
and a fine of between Q 3,000.00 and Q 6,000.00. The foregoing
shall be without prejudice to any other offences which such persons
may have committed.
Any public employee or official responsible for the
investigation, trial or custody of persons connected with offences
established under this Law who in any way assists such persons in
avoiding punishment or in escaping, conceals, alters, removes or
causes the disappearance of evidence, traces or instrumentalities
of the offence, or who safeguards the benefits or proceeds
therefrom, shall be punished by a term of imprisonment of between
six and 15 years and permanent disqualification from holding public
office, as well as a fine of between Q 50,000.00 and Q
1,000,000.00. If the aforementioned acts were committed by the
public employee or official through negligence, the punishment
shall be a term of imprisonment of between two and six years and
permanent disqualification from public office.
Anyone who encourages, aids and abets or incites by whatsoever
means the unauthorized use of narcotic or psychotropic substances
or drugs or inhalants shall be punished by a term of imprisonment
of between two and five years and a fine of between Q 5,000.00 and
Q 100,000.00.
Anyone who, for the purpose of obtaining any advantage, either
for himself or for a third party, following the commission of any
offence under this Law, and without prior agreement, conceals,
acquires or receives money, assets or property in the knowledge
that they are the proceeds of that offence, or were used to commit
it, shall be punished by a term of imprisonment of between three
and five years and a fine of between Q 1,000.00 and Q
100,000.00.
Anyone who, being aware of the commission of any offence under
this Law and without prior agreement, assists the perpetrator or
accomplice in evading the authority's investigations or in escaping
the action of the authority, shall be punished by a term of
imprisonment of between two and five years and a fine of between Q
1,000.00 and Q 100,000.00. For the purposes of the application of
this article and the preceding article, it shall be immaterial
whether the criminal act was committed on national territory or
abroad.
Should one or more persons die, as a consequence of offences
established under this Law, the punishment imposed shall be the
death penalty or imprisonment for a term of 30 years, depending on
the circumstances of the case. Should the consequence be serious or
very serious injuries or the loss or impairment of mental
faculties, the punishment shall be imprisonment for a term of
between 12 and 20 years.
If, as a consequence of offences under this Law, other criminal
acts are perpetrated, the rules relating to the concurrence of
offences shall apply.
For the prosecution of offences under this Law, the procedure
set out in the Code of Criminal Procedure shall be applied.
Without in any way impairing the rights conferred on accused
persons by the Political Constitution of the Republic and other
laws, the investigatory stage of the trial shall be confidential,
owing to the nature of the crimes to be investigated under this
Law.
In addition to the powers conferred on him by the Code of
Criminal Procedure, the judge may, ex officio or at the
request of a party, without the formulation of an incidental plea,
decide on:
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1. The provisional detention of the accused;
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2. The attachment of property;
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3. The recording of property in the property register;
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4. The seizure of property;
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5. The seizure of accounting records and ledgers;
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6. The suspension of patents, permits or licences that have been
duly issued and which may have been used in any manner for the
commission of the unlawful act;
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7. The freezing of bank accounts of the accused or of any
persons who may have benefited directly or indirectly from offences
committed by the accused;
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8. The total or partial closure, for the time and to the extent
strictly necessary, of hotels, guest-houses, establishments where
alcoholic beverages are sold or consumed, restaurants, clubs,
nightclubs, performance halls and, in general, any premises on
which he knows that an offence established under this Law has been
committed.
The precautionary measures specified in the preceding
subparagraphs shall apply immediately in order to guarantee the
effectiveness of any decisions issued and may be revoked by the
judge ex officio or at the request of a party.
Judicial seizure shall encompass all instrumentalities and
objects of the offence which are liable to confiscation, and
attachment shall encompass sufficient property to meet the civil
liability arising out of the offence.
In no circumstances shall any third party claims or
interventions be allowed, during the investigatory stage, whose
purpose is the return of assets constituting the corpus
delicti or the release of attached property.
Banking secrecy shall not apply in the investigation of offences
under this Law. Any information received shall be used solely for
the purposes of the penal proceedings and may be ordered only by
the competent judge ex officioor at the request of the
Department of Public Prosecution.
In order to protect witnesses who are in danger, the competent
judge may release them from the duty to state their domicile and,
in special circumstances, to furnish personal details. They shall
also be permitted to change their identity provided that this is
absolutely necessary.
In cases involving offences under this Law, statements by
co-perpetrators or accomplices in the same offence shall be valid
and shall be assessed as evidence if, by application of the rules
of free evaluation, they are consistent with the other evidence in
the trial.
The release on bail of any person charged as a perpetrator or
accomplice, in connection with any offences established under this
Law shall not be admissible, nor shall the sentence be suspended
except in the cases referred to in articles 16 and 18 of this Law.
Furthermore, it shall not be admissible to grant a pardon to any
person who has been sentenced.
The granting of any remission in the serving of a prison
sentence shall be subject to prior consultation with the Department
of Public Prosecution, which may object by means of an
interlocutory plea lodged before the competent court.
In the final verdict, the judge shall role on the confiscation
of seized property and shall fix the amount of damages, whose
non-payment within a period of three days from when the verdict
becomes final shall give rise to the enforcement of the ruling, and
the attached property shall be auctioned with allocation in
payment, if applicable.
In order to facilitate the investigation and legal proceedings
connected with offences under this Law, the Department of Public
Prosecution and the competent judicial authorities may provide
assistance to and request assistance from other States for the
purposes of:
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(a) Taking evidence or statements from persons;
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(b) Submitting judicial documents;
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(c) Making searches and seizures;
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(d) Examining objects and sites;
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(e) Furnishing information and evidentiary items;
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(f) Supplying originals or authentic copies of documents and
records connected with the case, including banking, financial,
corporate and commercial documentation;
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(g) Identifying or detecting proceeds, instrumentalities or
other items for evidentiary purposes;
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(h) Any other form of mutual judicial assistance authorized by
domestic law.
Provided that a reciprocal arrangement exists, States which have
signed international treaties on narcotic and psychotropic
substances and drugs that have been ratified by Guatemala may make
a written request for the pre-trial detention of a person sought
who is on the national territory.
The request shall contain:
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(a) Information regarding the description, identity, location
and nationality of the person whose detention is requested;
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(b) A statement made by a judicial officer concerning the
criminal act in respect of which the person sought is being
prosecuted, the place and date of commission of the offence and the
legal provisions establishing the offence;
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(c) An undertaking to request
extradition subsequently through the appropriate channels;
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(d) Accompanying documents evidencing the existence of a
conviction of a valid committal order issued by the competent court
in the country requesting the precautionary measure.
The competent courts may issue an order for the provisional
arrest of persons sought by another State in connection with
offences relating to narcotic or psychotropic substances or drugs.
The provisional arrest shall be discontinued if within 60 days
thereof no extradition request has been received. Such release
shall not prevent re-arrest or extradition if the request is
subsequently transmitted in accordance with the legal
formalities.
Requests for assistance made by other States may be transmitted
through diplomatic channels or directly to the Department of Public
Prosecution, which shall ensure that they are dealt with promptly
by the competent courts. National requests for procedural
assistance shall also be formulated and processed, through the
appropriate channels, by the Department of Public Prosecution.
The costs of executing a request for assistance shall be borne
by the requesting party.
For the purposes of this Law the following rules are established
with regard to extradition, whether active or passive:
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(a) Procedure of international treaties or conventions. Where
international extradition treaties or conventions exist,
extradition shall be requested and granted through diplomatic
channels in accordance with the procedure established in such
treaties or conventions, or, failing which and for any matters not
regulated therein, in accordance with the provisions of this
article;
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(b) In the absence of treaties or conventions, the procedure
shall conform to the principle of reciprocity and international
custom and practice;
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(c) Extradition shall operate provided that the requesting
country affords the Republic of Guatemala the same treatment in
similar cases;
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(d) Evidence produced abroad shall be assessed in accordance
with the evaluation criteria of the country which produced it,
provided that such particulars are demonstrated by means of the
procedures laid down by the Judiciary Act, with regard to proof of
the validity of foreign laws, and provided that the country
producing the evidence has a reciprocal arrangement with the
Republic of Guatemala to that effect;
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(e) When a foreign country requests the
extradition of an accused person who is in Guatemala, the Supreme
Court of Justice shall assess the request and, if it finds that the
request is in accordance with the law, it shall appoint a judge to
deal with it, who shall necessarily be one of the lower-court trial
judges of the Department of Guatemala. The procedure shall take the
form of an interlocutory plea and the decision pronounced on the
merits of the case shall be referred to the competent higher court.
Such decision shall, however, be subject to appeal;
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(f) If a person is sought by more than one State at the same
time, preference shall be given to meeting the request for
extradition from the State on whose territory the offence carrying
the heaviest penalty was alleged to have been committed, or, if
there are two or more offences of equal apparent seriousness, to
the request from the State which first requested the extradition;
if an accused person is sought for the same criminal act by a
number of States, extradition shall be granted to the country in
which the offence was alleged to have been committed;
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(g) If extradition has been declared admissible and the
requesting State fails to remove the person sought in within 30
days of his being held with a view to surrender, that person shall
be released forthwith on the day following expiry of the aforesaid
period, and his extradition may not be requested again in respect
of the same criminal act;
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(h) Once the verdict has become final, the case file shall be
sent to the Executive through the Office of the Chairman of the
Judiciary and, if the extradition is denied therein, the Executive
may not allow it; if, however, it is decided that the surrender of
the person sought is admissible, the Executive shall be entitled to
decide whether or not to abide by the decision of the courts of
justice. In any event, the case records and all other evidence
shall be returned to the original court so that they may be filed
or, if applicable, so that the proceedings may be continued in
Guatemala;
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(i) If extradition is denied because the courts of justice have
so decided or because the Executive has so ruled, Guatemala shall
be obliged to try the non-extradited person and also to send to the
requesting State a certified copy of the verdict.
This article shall apply to offences established under this
Law.
The State of Guatemala may hand over the person sought to the
requesting party without any formal extradition procedure, provided
that the person sought agrees to such surrender before a competent
judicial authority.
The Commission on Drug Addiction and Trafficking shall be
established as a body attached to the Office of the Vice-President
of the Republic, with full powers to receive resources on
whatsoever basis and to take all steps to ensure the fulfilment of
its aims.
The Commission shall study and decide on national policies for
the prevention and treatment of addiction as well as for the
prevention of unlawful acts connected with drug trafficking in all
its forms, and related activities.
The Commission's specific functions shall be:
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(a) To plan, design and coordinate the implementation of
policies and strategies for preventing and treating addiction and
alcoholism;
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(b) To establish epidemiological
research and investigation, scientific, educational, information
and technical training programmes for dealing with the national
problem of addiction in all its aspects and dimensions;
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(c) To coordinate all activities directed towards the effective
treatment of persons who have become involved in any way in the
abuse of the drugs referred to in this Law;
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(d) To adopt recommendations on crime prevention and the
treatment of offenders emerging from the conclusions of congresses
held by national and international organizations, in particular
scientific events, which relate to the object of this Law;
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(e) To take decisions, make recommendations and prepare control
and prevention plans for observance at the administrative level and
implementation by the various national police authorities and by
other security forces, with a view to suppressing and prosecuting
unlawful acts connected with illicit drug trafficking in all its
forms and related activities;
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(f) To adopt, in coordination with the Ministry of Finance,
appropriate measures for controlling customs operations relating to
the import or export of narcotic drugs and psychotropic substances,
as well as the other drugs referred to in this Law, precursors and
chemicals that are essential for the manufacture thereof;
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(g) To coordinate the campaigns and initiatives that each
ministry and organization comprising the Commission has to carry
out within its area of competence;
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(h) To promote the improvement of the legal framework concerning
drug-related offences;
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(i) To give its opinion on the signing and ratification of the
different international conventions on narcotic drugs and
psychotropic substances;
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(j) To follow up the related agreements signed by Guatemala;
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(k) To propose Guatemala's participation in events whose
importance and relevance so merit;
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(l) To maintain contacts with foreign Governments and
international organizations and to take steps with a view to
coordinating the national action with that of other States and
obtaining such assistance as may be necessary;
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(m) To administer the special funds allocated to it under the
relevant budget item as well as the resources which it receives on
whatsoever basis, subject to the laws of the Republic on the
management of the assets and liabilities of the State;
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(n) Any other functions that may be necessary for the
achievement of its aims.
The Commission on Drug Addiction and Trafficking shall have the
following membership:
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(a) The Vice-President of the Republic, who shall chair the
Commission;
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(b) The Minister of the Interior, who shall serve as
vice-chairman of the Commission;
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(c) The Minister of Defence;
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(d) The Minister of Public Health and
Welfare;
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(e) The Minister of Education;
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(f) The Minister of Agriculture, Livestock and Food;
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(g) The Minister for Foreign Affairs;
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(h) The Minister of Communications, Transport and Public
Works;
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(i) The Chief of the Department of Public Prosecution.
Ministers may only delegate deputy ministers to represent them.
The Chief of the Department of Public Prosecution may only delegate
the head of the Prosecution Section to represent him.
The Commission shall appoint an executive secretary, who shall
be responsible for implementing the policies designed for the
prevention and treatment of addiction, and shall also appoint the
staff necessary for its operation. The executive secretary of the
Commission shall hold the same qualifications an are required for
the post of private secretary of the Office of the President of the
Republic and shall enjoy the same privileges and immunities. The
executive secretary shall also serve as special adviser to the
Ministry of the Interior on drug-related matters.
The Ministry of the Interior, with the cooperation of the
Ministry of Defence, shall be responsible for implementing the
policies concerning the prevention and prosecution of all unlawful
acts connected with drug trafficking in all its forms and related
activities.
On matters relating to the prevention and treatment of
addiction, this Advisory Board shall be composed of the current
National Council for the Prevention of Alcoholism and Drug
Addiction.
Government agencies and institutions may cooperate with the
Commission, to the extent requested of them. Agencies whose
activities have the object of preventing and treating addiction
shall be guided by the policies established by the Commission in
that regard.
The Commission may appoint subcommissions from among its own
members or composed of persons who are not part of its membership.
It shall appoint at least a subcommission on prevention and other
necessary policies, whose functions shall be to develop and monitor
the implementation of strategies and measures adopted by the
Commission and to promote cooperation among investigating
authorities and on the part of society in connection with the
programmes adopted.
The Executive shall issue the regulations necessary for the
proper operation of the Commission.
The following are special laws supplementing the present Law:
the Penal Code, the Public Health Code, the Code of Criminal
Procedure, the Judiciary Act and the Law on the Executive.
All laws or provisions that contradict this Law are hereby
revoked.
This Law shall come into force fifteen days after its
publication in the Official Gazette.
TO BE SUBMITTED TO THE EXECUTIVE FOR PUBLICATION AND
IMPLEMENTATION.
DONE AT THE SEAT OF THE LEGISLATURE, IN GUATEMALA CITY, THIS
TWENTY-THIRD DAY OF SEPTEMBER, NINETEEN HUNDRED NINETY-TWO.
[Signed]
Edmond Mulet, President
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[Signed]
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[Signed]
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Luis Ernesto Contreras Ramos, Secretary
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José Eduardo Rottmann Ruiz, Secretary
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[Stamp of the Congress of the Republic of Guatemala, Central
America]
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