TerraLex Guide to Anticorruption Legislation

No.

• Political Constitution of the Republic of Guatemala;
• United Nations Convention Against Corruption (UNCAC), adopted by Decree 91-2005;
• Inter-American Convention Against Corruption (IACAC), adopted by Decree 15-2001;
• United Nations Convention Against Transnational Organized Crime (UNTOC); Central American Agreement for the Protection of Victims, Witnesses, Experts and other Subjects involved in the Investigation and Criminal Proceedings, particularly in Narcoactivity and Organized Crime;
• Criminal Code, Decree 17-73;
• Law Against Corruption, Decree 31-2012;
• Probity and Responsibility of Public Officials Law, Decree 89-2002;
• State Procurement Law, Decree 57-92;
• Organic Law of the Attorney General’s Office, Decree 40-94;
• Law on Access to Public Information, Decree 57-2008;
• Law Against Money Laundering, Decree 67-2001;
• Law Against Organized Crime, Decree 21-2006;
• Asset Forfeiture Law, Decree 55-2010;
• Law on Criminal Competence for High-Risk Proceedings, Decree 21-2009;
• Regulation of the State Procurement Law, Governmental Decree 122-2016;
• Regulation of the Law Against Money Laundering, Governmental Decree 118-2002;
• Regulation of the Asset Forfeiture Law, Governmental Decree 514-2011;
• Regulation of the Probity and Responsibility of Public Officials Law, Governmental Decree 613-2005;
• Agreement for the determination of the 12th Criminal Instance Court competence (exclusively for crimes committed by public officials), Supreme Court of Justice Agreement 22-2020 [provisionally suspended by the Constitutional Court];
• Agreement for the creation of the Presidential Commission Against Corruption, Governmental Decree 28-2020;
• Amendments to the Agreement for the creation of the Presidential Commission Against Corruption, Decree 31-2024.

In general terms, Guatemala’s anticorruption legislation prohibits the bribing of public officials (actively or passively), collusion with public officials (in state procurement proceedings), and the embezzlement of public funds. Additionally, it prohibits the laundering of corruption funds and the purchase of assets with proceeds of corruption.

Yes, according to article 442 Bis of the Criminal Code, any individual that offers or pays a bribe to a foreign government official or member of an international organization, directly or indirectly, as a present, favor, promise or any other concept, for its benefit or for the benefit of a third party, to carry out, order, delay or omit an act proper to his position, commits the crime of Active Trasnational Bribery and shall be punished with a prison term of five to ten years and a fine of 50K to 500K Quetzales (approximately 6,500 to 65K US Dollars).

No, according to Guatemala’s anticorruption regulation, for an act to be labeled as a “corruption act” it requires the participation of a public official or an individual that exercises public functions. Furthermore, there are no jurisprudential precedents that label an “act of corruption” in the business to business context, especially with regards to the Active Trasnational Bribery (which includes the payment of bribes to a member of an “international organization”).

Guatemala does not have a specific regulation of facilitation payments. Thus, given the nature of facilitation payments, they are not allowed in Guatemala and may be considered bribery.

Yes, the corporation could be prosecuted if it authorizes or consents to the participation of its overseas agents, directors, representatives, or employees in the crime and any of the following circumstances occur: (a) when the criminal act is committed due to the corporation’s lack of control or supervision and the crime is favorable to the corporation; or, (b) when the criminal act is committed by decision of the decision-making body of the corporation.

In the case of intermediaries, joint venture partners, and third parties, the corporation could be criminally liable if any of those individuals’ acts are binding to the corporation and they legally represent the corporation, as well as if the participation of these individuals was authorized or consented to by the corporation and one of the aforementioned circumstances occurs.

Yes, according to article 5 of the Criminal Code, Guatemala’s legislation has extra territorial reach in any of the following cases:

1. When a crime is committed abroad by a public official, when it has not been tried in the country where the act was perpetrated.

2. When a crime is committed in a Guatemalan ship, aircraft, or any other means of transportation, and it has not been tried in the country where the crime was committed.

3. When a crime is committed by a Guatemalan national abroad, and his extradition to the country where the crime was perpetrated has been denied by Guatemala’s government.

4. When a crime is committed abroad against a Guatemalan national, and the crime has not been tried in the country where it was perpetrated, as long as there is an accusation by a party or by the Attorney General’s Office and the accused is in Guatemalan territory.

5. When, in accordance with a treaty or convention, a crime must be tried in Guatemala, even when it was not committed in its territory.

6. When a crime is committed abroad against Guatemala’s national security, its constitutional order, its territory, and official or credit documents issued by the Guatemalan government, including the forgery of currency, bank notes, bonds or any other document where the President’s signature was forged.

Yes, in accordance with article 38 of the Criminal Code, the Directors of a company who have participated in the criminal act and without whose participation the act would not have been carried out, may be found criminally liable for the crimes committed by the corporation.

In accordance with article 38 of the Criminal Code, the Directors and/or corporations that have committed corruption acts or any other crimes shall be sanctioned with the penalties set forth in the Guatemalan legislation for each of the committed crimes (generally imprisonment and payment of fines). However, in all crimes where corporations are liable and a penalty is not indicated, a fine of US$10K to US$625K shall be imposed. The fine shall be determined in accordance with the corporation’s economic capacity and shall take into account the circumstances in which the crime was committed. In the case where the corporation is considered as a repeat offender (commission of a new crime after having been convicted for a previous crime) the definitive cancellation of the corporation’s legal personality shall be ordered.

Yes, according to the Criminal Code (Decree 17-73) and the Law against Corruption (Decree 31-2012), companies may be held responsible for corruption offenses.

Regarding legal entities, responsibility for the respective offenses will be attributed to directors, managers, executives, representatives, administrators, officials, or employees of the company who were involved in the act and without whose participation it would not have been committed.

Furthermore, legal entities will be liable in all cases where their directors, managers, executives, representatives, administrators, officials, or employees participate with their authorization or consent. This also applies when one of the following circumstances occurs: a) The offense is committed due to a lack of control or supervision, and the outcome is favorable to the entity. b) The offense is committed by decision of the decision-making body.

In all cases where legal entities are found responsible for offenses and no specific penalty is specified, a fine ranging from US$10,000.00 to US$625,000.00, or its equivalent in national currency, will be imposed. The fine will be determined based on the economic capacity of the legal entity and considering the circumstances under which the offense was committed.

To establish liability for corruption offenses, it is necessary that there is a benefit to the company (direct or indirect), participation in the acts by the company, and omissions of controls (adequate control or supervision measures).

No, there is no mandatory requirement for companies to implement preventive measures such as compliance programs or whistleblower hotlines.

Under Guatemalan legislation, specifically the Law Against Money Laundering and Other Assets (Decree 67-2001), there is an obligation to adopt, develop, and execute suitable programs, standards, procedures, and internal controls to prevent the misuse of their services and products in money laundering or other asset-related activities (Art. 19 LCLDOA).

These programs must include at a minimum procedures to ensure a high level of integrity and knowledge of the personal, employment, and financial backgrounds of employees; ongoing training for staff; and the establishment of an auditing mechanism to verify and assess compliance with programs and standards.

However, this requirement applies only to specific entities defined by law as obligated persons, such as:

1. Entities under the supervision and inspection of the Superintendence of Banks;
2. Individuals or legal entities engaged in brokerage or intermediation in securities trading;
3. Issuers and operators of credit cards;
4. Offshore entities operating in Guatemala;
5. Individuals or legal entities engaged in systematic or substantial activities such as check cashing, issuance, sale, or purchase of traveler's checks, systematic or substantial fund transfers or capital movements, factoring, leasing, foreign exchange trading, etc.

Obligated persons are liable for non-compliance with these obligations and may be sanctioned by the competent administrative authority with fines ranging from US$10,000.00 to US$50,000.00, or the equivalent in national currency, depending on the severity of the offense. Additionally, they must comply with the omitted obligation that led to the sanction within the timeframe set by the competent authority.

No, the implementation of a compliance program could not be considered as a mitigating factor in the case of a specified crime.

The Criminal Code (Decree 17-73), in its Book I, Title IV, Chapter I, regulates circumstances that modify criminal responsibility, specifically mitigating circumstances in Article 26, which are exhaustively listed.

Among the mitigating circumstances established in criminal law are: mental inferiority, excessive justification causes, emotional state, effective repentance, reparation of harm, preterintentionality, surrender to authorities, spontaneous confession, ignorance, difficulty in foreseeing, provocation or threat, vindication of offenses, incomplete culpability, and mitigating circumstances by analogy.

Therefore, since the implementation of a compliance program is not expressly regulated as a mitigating factor in the case of a specified crime, it cannot currently be applied in practice. Legislative reforms would be necessary for this mitigating circumstance to be implemented.

No, in Guatemala there is not an established specific corporate settlement procedure for corruption offenses.