Special procedure for Acceptance of Charges regains validity

 Welcome to #FreshStartMonday!

On June 1, 2022, the Constitutional Court (CC) issued a rulingin which it declared invalid two actions that challenged the constitutionality of the Decree 10-2019f the Congress of the Republic, which established the "Special Procedure for Acceptance of Charges”Procedimiento Especial de Aceptación de Cargosto the Criminal Procedure Code.[1] Decree 10-2019 – also known as the “Acceptance of Charges Law” (ACL) – was sanctioned by the Executive Branch in December 2019 and was scheduled to come into force on January 16, 2020;[2] however, that same day, the CC provisionally suspended the validity of the law due to the filing of the actions that challenged its constitutionality.[3]

In the ruling, the CC emphasized the optional nature of the procedure for those people who wish to accept the charges filed against them and highlighted that the acceptance of charges is intended to satisfy a specific public need: to speed up the administration of justice and provide a rapid solution to certain cases, given the current saturation and overload that exists in criminal courts; thus, this special procedure cannot be considered unconstitutional. Likewise, the CC considered that the attributions and powers of the criminal judges and the Public Ministry are not affected by the approval of the ACL.

Therefore, by declaring that the ACL is not unconstitutional, its provisional suspension was revoked; therefore, now that the ACL is in force, anyone facing criminal prosecution can accept the charges filed against them in exchange for a reduction in the penalties to be imposed, if the applicable requirements are verified.

According to the ACL, the reduction of penalties will depend on the procedural moment in which the acceptance is made, establishing lower reductions as the criminal proceedings advance:

  1. If the acceptance is made at the arraignment hearing or before the defendant is sent to trail, the penalties to be imposed will be reduced by half;
  2. If the acceptance is made after the defendant is sent to trail or before the trail begins, the penalties to be imposed will be reduced by one third; and,
  3. If the acceptance is made after the start of the trail and before any evidence is received, the penalties to be imposed will be reduced by one fifth.

It should be noted that, after the application of the reduction in penalties for accepting charges, and if the corresponding requirements are verified, the defendant could opt for other benefits provided for in Guatemalan criminal law, such as the commutation of the sentence and/or the conditional suspension of the sentence, which could represent, in some cases, that the defendant is not imprisoned.

To qualify for this benefit, it is essential that the acceptance of the charges is free, voluntary and sufficiently informed (advice from the defense attorney is mandatory). Likewise, the defendant must compensate the damages caused by the commission of the crime to the victims or aggrieved (if any),[4] and must return the product or proceeds of the crime. In this context, the acceptance of charges implies accepting the facts with their circumstances of time, manner and place, the responsibility for them and the legal qualification of the crime stated in the indictment or in the resolution that orders the opening of the trial.

It should be clarified that, by express provision, there are some crimes that prohibit the application of the acceptance of charges. Such crimes are: crimes against humanity, forced disappearance, extrajudicial execution, rape, kidnapping, murder, parricide, human trafficking, aggravated robbery, terrorism, among others. Additionally, the acceptance of charges cannot be applied to the case of habitual repeat offenders for the same crime.

On the other hand, it is worth mentioning that the person who accepts any charge has the right to retract until the moment he or she is declared guilty. In that case, the process will continue its normal course and any information declared by the person who retracted cannot be used against him or her.[5]

As mentioned previously, the purpose of the special procedure for the acceptance of charges is to speed up the administration of justice and decongest the overload that exists in the Guatemalan criminal courts. However, it is possible that the acceptance of charges has the undesired consequence of causing some delays in other phases or instances of the criminal process. For example, since the acceptance of charges is a discretionary power or right of any defendant, the acceptance could become a "hidden cost" that the Public Ministry must consider when formulating any accusation; this could cause delays in the preliminary investigations, since all the circumstances in which the facts of the case would have occurred, as well as the corresponding legal qualification, should be fully determined prior to the start of the arraignment hearing so that the person processed, if he or she decides to do so, can accept the charges. Otherwise, their right to receive the benefit that the penalties to be imposed are reduced by half in the initial phase of the criminal process could be violated or at least restricted. In other words, the Public Ministry must carry out more exhaustive investigations prior to charging any person with any crime because he or she has the right to accept the charges at the initial hearing of the criminal process (arraignment hearing) so that the crime and the circumstances of its commission must be fully identified.

Additionally, given that the ACL limits the grounds for the filing of an appeal against the judgment issued in the acceptance of charges procedure – procedural guarantees, penalties, freedom or resolution contrary to the accepted charges –, this could generate the filing of constitutional actions (amparos) based on other grounds, transferring the workload or burden to an Appeals Court.

For these reasons, only the time and practical application that judges give to the acceptance of charges will tell if this special procedure achieves its goal of decongesting the criminal system to provide prompt and fair justice to Guatemalans.

We hope you enjoy your coffee!

[1] Ruling dated June 1st, 2022 issued by the Constitutional Court within the cases file number 228-2020 and 791-2020.



[4] The amount of the damages will be determined through a conciliatory act with the mediation of the court; or, in a reparation hearing. The reduction in penalties will not be executed until the reparation and/or the ways to guarantee its execution are determined.  

[5] In accordance with articles 16 of the Guatemalan Constitution, 15 of the Criminal Procedure Code and 8.2 of the Interamerican Convention on Human Rights.


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