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Notice: Laws Against Corruption 

Published: December, 2012

Submission: December, 2012

 



On November 22nd a law referred as Law against Corruption was published on the official Gazette (Decree number 31-2012 of Guatemalan Congress), which entered into force on November 30th, 2012. This law  mainly incorporates amendments to the Criminal Codes, Law Against Organized Crime and Property Forfeiture Law.

The amendments of the Criminal Code include: a) modification of crimes against public administration and crimes against justice administration, some are affected by an increase in penalties; b) definition for new crimes, such as passive transnational bribery, embezzlement by use, illicit enrichment, particular illicit enrichment, use of Straw Men, influence peddling, obstruction of criminal law among others; c) modifications to the regulation of the criminal liability of legal entities.

It is important to note the inclusion of crimes such as embezzlement by use, a crime that can be committed
by public contractors or its employees when using or permitting others to use, on its own or another individual or entities profit, vehicles, machinery or any other artifact that belongs to the public administration, while under the contractors custody.  Use of Straw Men, by an individual or an entity has, if a person or its name is used to collaborate in the commission of a crime against the public administration. Influence peddling is characterized when a crime is committed by an individual or entity, by itself or through an intermediary, influencing on a public official availing to its rank, position,
friendship, among others.

Of special importance are the modifications to the regulation of the criminal liability for legal entities, which now extends to the commission of a crime by failure to control or supervise, in case a related person or entity is convicted of a crime. Since the Anticorruption Law entered into force, a fine of US$10,000.00 to US$625,000.00 will apply to all those crimes in which a legal entity gets convicted of a crime that does not state a specific penalty (the fine shall be determined in accordance to the economic capability of the legal entity and the circumstances in which the crime was committed). In case of relapse, the penalty will consist on the definitive cancelation of the legal standing of the convicted entity. Lastly, an  additional penalty, consisting on the prohibition of contracting with the State, will be imposed in case the legal protected
interest of the crime committed relates to the public or judicial administration.On November 22nd a law referred as Law against Corruption was published on the official Gazette (Decree number 31-2012 of Guatemalan Congress), which entered into force on November 30th, 2012. 


This law  mainly incorporates amendments to the Criminal Codes, Law Against Organized Crime and Property Forfeiture Law.

The amendments of the Criminal Code include: a) modification of crimes against public administration and crimes against justice administration, some are affected by an increase in penalties; b) definition for new crimes, such as passive transnational bribery, embezzlement by use, illicit enrichment, particular illicit enrichment, use of Straw Men, influence peddling, obstruction of criminal law among others; c) modifications to the regulation of the criminal liability of legal entities.

It is important to note the inclusion of crimes such as embezzlement by use, a crime that can be committed by public contractors or its employees when using or permitting others to use, on its own or another individual or entities profit, vehicles, machinery or any other artifact that belongs to the public administration, while under the contractors custody.  Use of Straw Men, by an individual or an entity has, if a person or its name is used to collaborate in the commission of a crime against the public administration. Influence peddling is characterized when a crime is committed by an individual or entity, by itself or through an intermediary, influencing on a public official availing to its rank, position, friendship, among others.

Of special importance are the modifications to the regulation of the criminal liability for legal entities, which now extends to the commission of a crime by failure to control or supervise, in case a related person or entity is convicted of a crime. Since the Anticorruption Law entered into force, a fine of US$10,000.00 to US$625,000.00 will apply to all those crimes in which a legal entity gets convicted of a crime that does not state a specific penalty (the fine shall be determined in accordance to the economic capability of the legal entity and the circumstances in which the crime was committed). 


In case of relapse, the penalty will consist on the definitive cancelation of the legal standing of the convicted entity. Lastly, an additional penalty, consisting on the prohibition of contracting with the State, will be imposed in case the legal protected interest of the crime committed relates to the public or judicial administration.

 


 

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