Lex Mundi Global Anti-Corruption Compliance Guide |
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Guatemala |
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| (Latin America/Caribbean) Firm Mayora & Mayora, S.C. Updated 06 Feb 2020 | |
| What is the key anti-bribery and corruption legislation in your jurisdiction? | The Guatemalan Congress enacted a specific Anticorruption Act (Ley Contra la Corrupción, Decree 31-2012) in order to update existing criminal legislation to combat corruption in its various forms, including bribery. As such, it is not an independent legislation, but rather a series of amendments to pre-existing laws such as the Criminal Code (Código Penal, Decree 17-73), the Asset Seizure Act (Ley de Extinción de Dominio, Decree 55-2010), and the Organized Crime Act (Ley Contra la Delincuencia Organizada, Decree 21-2006). |
| Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years? | Yes. As stated in our response to "What is the key anti-bribery and corruption legislation in your jurisdiction?", the Anticorruption Act of 2012 made key amendments to the Criminal Code and related laws, with the specific intent of updating and strengthening anti-corruption and anti-bribery provisions |
| Is a bribe payment to domestic government officials prohibited by the legislation? | Yes. Bribery (cohecho) is considered a crime in both its active (cohecho activo) and passive (cohecho pasivo) forms. Pursuant to articles 439 and 442 of the Criminal Code (as amended by the Anticorruption Act), it is a crime either to request or accept a bribe as well as to offer or pay one. It is also expressly prohibited by the Probity and Liabilities of Public Officials and Employees Act, articles 18c) and 19c), Decree 89-2002 (Ley de Probidad y Responsabilidades de Funcionarios y Empleados Públicos). |
| Is a bribe payment to foreign government officials prohibited by the legislation? | Yes. Bribery (active and passive) is also considered a crime when it involves foreign officials or employees of an international organization under articles 442bis and 442ter of the Criminal Code (as amended and added, respectively, by the Anticorruption Act). |
| Is requesting or accepting a bribe prohibited by the legislation? | Yes. Per our response to "Is a bribe payment to foreign government officials prohibited by the legislation?", passive bribery constitutes a crime under the (amended) Criminal Code and is also prohibited by Decree 89-2002. |
| Who is subject to the legislation? | Passive bribery (cohecho pasivo) may be committed by a (domestic) public official, a public employee, or anyone who exercises a public function. A public official or employee of another state or of an international organization may commit transnational passive bribery. Any person may commit active bribery or paying a bribe to a domestic or foreign official, as described above. All persons above the legal age of eighteen years are subject to criminal liability. Corporate entities are subject to the law under the terms of article 38 of the Criminal Code (as amended by the Anticorruption Act). This rule states that, as it relates to corporate entities, criminal liability corresponds to their directors, managers, executives, representatives, administrators, officials or employees who intervened in the criminal act and without whose participation the crime would not have been committed. Such personnel will be subject to criminal sanctions as established for individuals. Corporate entities will be liable in all cases in which their personnel acted with the entity’s authorization, agreement or approval (anuencia), as well as when the crime is committed by lack of control or supervision and the results are favorable to the entity, or by decision of its decision-making body (órgano decisor). The Criminal Code (articles 4 and 5) states that Guatemalan criminal law applies to any person who commits a crime or misdemeanor within Guatemalan territory or in places or vehicles subject to Guatemalan jurisdiction. It also applies to:
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| Is there criminal liability for corporate entities who have either paid or accepted a bribe payment? | Yes. Corporate entities are subject to criminal liability as described in our response to "Who is subject to the legislation?". |
| What is the penalty for individuals violating the law? | Passive bribery carries a prison term between five and ten years, a fine between GTQ 50,000.00 to GTQ 500,000.00, and prohibition to hold public office or employment, including removal from the current position, regardless of whether it arises from public election. Active bribery carries a prison term between five and ten years, a fine between GTQ 50,000.00 to GTQ 500,000.00, and prohibition to exercise a profession or activity requiring authorization or license. Transnational bribery, both passive and active, carry a prison term ranging between five and ten years and a fine between GTQ 50,000.00 to GTQ 500,000.00. |
| Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law? | Corporate entities are subject to a criminal fine ranging between USD 10,000.00 and USD 625,000.00 (not including civil liability or reimbursement obligations which may arise from the crime). In the case of recurrence, entities are subject to definitive cancellation of the entity’s legal status. In case of active bribery (offering or paying bribes), legal entities may also be debarred from contracting with the state. |
| Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense? | Yes. It would constitute a defense in as much as one of the cases that give rise to criminal liability consists of the crime having been committed by the entity’s personnel due to lack of control or supervision. However, the mere formal existence of a compliance program would not be sufficient to exclude liability if control and supervision according to such program are not duly exercised. In addition, a compliance program would not constitute a defense in cases where the basis for charging the entity with criminal liability is authorization, approval, agreement or decision of the entity to violate the law. |
| Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities? | Bribery in all its forms (active, passive, domestic, or transnational) is included among the crimes which may be committed by an organization, according to article 2e.1) of the Organized Crime Act (Ley Contra la Delincuencia Organizada, Decree 21-2006). As such, suspects and perpetrators have access to certain benefits the Act provides for cooperators (colaborador eficaz). These benefits include concepts similar to deferred prosecution or leniency (criterio de oportunidad, diminished penalties, parole, plea bargain), which may be granted under the terms and conditions established by the Organized Crime Act. Please note that these benefits are not available if the bribery was not committed as part of a scheme or operation which falls under the Act. |
Lex Mundi Global Anti-Corruption Compliance Guide
The Guatemalan Congress enacted a specific Anticorruption Act (Ley Contra la Corrupción, Decree 31-2012) in order to update existing criminal legislation to combat corruption in its various forms, including bribery. As such, it is not an independent legislation, but rather a series of amendments to pre-existing laws such as the Criminal Code (Código Penal, Decree 17-73), the Asset Seizure Act (Ley de Extinción de Dominio, Decree 55-2010), and the Organized Crime Act (Ley Contra la Delincuencia Organizada, Decree 21-2006).
Yes. As stated in our response to "What is the key anti-bribery and corruption legislation in your jurisdiction?", the Anticorruption Act of 2012 made key amendments to the Criminal Code and related laws, with the specific intent of updating and strengthening anti-corruption and anti-bribery provisions
Yes. Bribery (cohecho) is considered a crime in both its active (cohecho activo) and passive (cohecho pasivo) forms. Pursuant to articles 439 and 442 of the Criminal Code (as amended by the Anticorruption Act), it is a crime either to request or accept a bribe as well as to offer or pay one.
It is also expressly prohibited by the Probity and Liabilities of Public Officials and Employees Act, articles 18c) and 19c), Decree 89-2002 (Ley de Probidad y Responsabilidades de Funcionarios y Empleados Públicos).
Yes. Bribery (active and passive) is also considered a crime when it involves foreign officials or employees of an international organization under articles 442bis and 442ter of the Criminal Code (as amended and added, respectively, by the Anticorruption Act).
Yes. Per our response to "Is a bribe payment to foreign government officials prohibited by the legislation?", passive bribery constitutes a crime under the (amended) Criminal Code and is also prohibited by Decree 89-2002.
Passive bribery (cohecho pasivo) may be committed by a (domestic) public official, a public employee, or anyone who exercises a public function. A public official or employee of another state or of an international organization may commit transnational passive bribery.
Any person may commit active bribery or paying a bribe to a domestic or foreign official, as described above. All persons above the legal age of eighteen years are subject to criminal liability.
Corporate entities are subject to the law under the terms of article 38 of the Criminal Code (as amended by the Anticorruption Act). This rule states that, as it relates to corporate entities, criminal liability corresponds to their directors, managers, executives, representatives, administrators, officials or employees who intervened in the criminal act and without whose participation the crime would not have been committed. Such personnel will be subject to criminal sanctions as established for individuals. Corporate entities will be liable in all cases in which their personnel acted with the entity’s authorization, agreement or approval (anuencia), as well as when the crime is committed by lack of control or supervision and the results are favorable to the entity, or by decision of its decision-making body (órgano decisor).
The Criminal Code (articles 4 and 5) states that Guatemalan criminal law applies to any person who commits a crime or misdemeanor within Guatemalan territory or in places or vehicles subject to Guatemalan jurisdiction. It also applies to:
- Crimes committed abroad by Guatemalan officials or crimes committed in Guatemalan transports, in both cases when not judged in the country where the crime took place;
- Crimes committed abroad by a Guatemalan, when extradition has been denied;
- Crimes committed abroad against a Guatemalan national, when not judged in the country where the crime took place and the perpetrator is to be found in Guatemala;
- Crimes that, by international treaty or convention, must be punished in Guatemala even when not committed within its territory; and
- Crimes committed abroad against Guatemalan national security, constitutional order or territorial integrity, as well as falsification of the President’s signature, money, banknotes, bonds and other securities.
Yes. Corporate entities are subject to criminal liability as described in our response to "Who is subject to the legislation?".
Passive bribery carries a prison term between five and ten years, a fine between GTQ 50,000.00 to GTQ 500,000.00, and prohibition to hold public office or employment, including removal from the current position, regardless of whether it arises from public election.
Active bribery carries a prison term between five and ten years, a fine between GTQ 50,000.00 to GTQ 500,000.00, and prohibition to exercise a profession or activity requiring authorization or license.
Transnational bribery, both passive and active, carry a prison term ranging between five and ten years and a fine between GTQ 50,000.00 to GTQ 500,000.00.
Corporate entities are subject to a criminal fine ranging between USD 10,000.00 and USD 625,000.00 (not including civil liability or reimbursement obligations which may arise from the crime). In the case of recurrence, entities are subject to definitive cancellation of the entity’s legal status.
In case of active bribery (offering or paying bribes), legal entities may also be debarred from contracting with the state.
Yes. It would constitute a defense in as much as one of the cases that give rise to criminal liability consists of the crime having been committed by the entity’s personnel due to lack of control or supervision. However, the mere formal existence of a compliance program would not be sufficient to exclude liability if control and supervision according to such program are not duly exercised. In addition, a compliance program would not constitute a defense in cases where the basis for charging the entity with criminal liability is authorization, approval, agreement or decision of the entity to violate the law.
Bribery in all its forms (active, passive, domestic, or transnational) is included among the crimes which may be committed by an organization, according to article 2e.1) of the Organized Crime Act (Ley Contra la Delincuencia Organizada, Decree 21-2006). As such, suspects and perpetrators have access to certain benefits the Act provides for cooperators (colaborador eficaz). These benefits include concepts similar to deferred prosecution or leniency (criterio de oportunidad, diminished penalties, parole, plea bargain), which may be granted under the terms and conditions established by the Organized Crime Act.
Please note that these benefits are not available if the bribery was not committed as part of a scheme or operation which falls under the Act.