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[*391] The first Criminal Procedure Code in Guatemala dates from 1873 and was based on Spanish law. n178 That code, in effect until 1973, followed the inquisitorial model: nearly all of the process was in writing. Further, the same judge that conducted the investigation then qualified evidence and proceeded through the trial and sentencing. n179

In Guatemala, under the old criminal procedure code, criminal complaints were usually presented to a justice of the peace (juez de paz), especially in rural areas. In theory, that judge would then issue a report to the instruction judge in the nearest municipality. n180 The instruction judge would then have fifteen days (the sumario), while the case is "under investigation" (sobre averiguar) to decide probable cause. n181 The case would either be sent to a sentencing judge (juez de sentencia) or the process would be suspended for lack of evidence. n182

B. Performance Under the Inquisitorial System in Guatemala.
The inquisitorial system in Guatemala did not perform well. Citizens who were illiterate or only spoke an indigenous dialect were at a great disadvantage in written procedures. Translators and public defenders were extremely scarce in rural areas. Judges generally based verdicts on second-hand renderings of testimony taken by poorly prepared clerks, often leading them to adopt formalistic interpretations of the law. n183

Serious problems existed with the implementation of the inquisitorial system in Guatemala, in place until 1994. Such problems can be summarized as follows: n184

[tdi2m,m'(m)',qc [tcg1n,mp1,ql,vu1] (a)No assurance of a right to defense. (b)Violation of the presumption of innocence, given that the majority of prisoners held were in pre-trial detention, without having been convicted. [*392] (c)Arbitrary detentions. The system was indifferent to repressive activities of the State. (d)Unlawful detentions and torture. (e)Induced confessions. (f)Atmosphere favoring abuse of power and over-bureau-

cratization. (g)Hinderance of efficient or technical investigation, especially in non-conventional crimes. (h)Conflicts of interest for the judges. (i)Violation of Constitutional due process. (j)Slow and complicated.

While the old system failed to address criminal activity causing the greatest social destruction, the system did concentrate its weight upon the most marginalized social sectors. n185

C. Criminal Procedure Reform.

New Criminal Procedure Codes in civil law countries have moved toward the adversarial (accusatorial) model. Italy, Portugal and Cordova, Spain, have each developed new codes with adversarial law concepts. n186 In 1989, Italy abolished the position of examining magistrate (juez de instruccion), due to criticisms of secrecy and length of proceeding. n187 Guatemala is seen as consistent with this tendency. n188 In fact, Guatemala's efforts are really a first in Latin America. n189

[*393] On September 22, 1992, the Guatemalan Congress unanimously approved revisions of Guatemala's Code of Criminal Procedure. n190 The new Code came into effect in July 1994. n191 At the same time, the then existing Public Ministry was slit into two separate institutions: The Prosecutor's Office (Fiscalia General, Ministerio Publico) and a Solicitor General's office (Procuraduria de la Nacion). n192

Preliminary investigations (procedimientos preparatorios) are now handled by the Public Ministry, replacing the instruction judge. n193 The role of the instruction judge was redefined, limiting the judge to only supervision of the process, and authorization of searches, seizures and detentions. n194 By getting the judge out of the business of carrying out the investigation, the authors of the new Code hoped to make the judge more impartial to the evidence, consistent with the goals of an adversarial system. n195

Under the old system, the judge was placed in the position of having to gather evidence for the prosecution, and then weigh the evidence in neutral fashion. n196

[*394] Under new law, once the criminal investigation, or instruction, is complete, the process moves to the fase intermedia, n197 equivalent in the U.S. to the probable cause phase. n198 Defense attorneys have an opportunity to oppose prosecution and contest the investigation. n199 Any coerced statements or illegally obtained evidence will be suppressed. n200 If the judge finds sufficient grounds, the case proceeds to oral trial. n201 The process concludes with a written judgement (sentencia) which is either guilty (sentencia condenatoria) or not guilty (sentencia absolutoria). n202 Judgements are written and must contain the legal basis for the decision including an evaluation of the evidence - without which the judgement would be void. n203

Under the new Code, three judge panels (tribunal de sentencia) now determine probable cause, based on evidence presented by the prosecution and defense in oral hearings. n204 Responsibility for criminal investigation passed from judges under the old law, to prosecutors under the new. n205 Spanish translation is required for non-native speakers. The changes were designed to provide more direct access to judicial procedures for the majority of the rural population which are illiterate. n206

Other major aspects of the new Criminal Procedures Code include: n207
Pre-trial detention (prision preventiva): Under old legislation, suspects were often held for two or three years. n208 This is now changing, albeit slowly. n209 Article 14 of the Constitution and Article [*395] 14 of the new Code create a presumption of innocence. n210 The rule now is no detention, except in exceptional and specific conditions (principio de excepcionalidad). n211 Such conditions might be a reasonable risk of flight or destruction of evidence. n212 The new law puts a cap on detention at one year, guaranteeing a speedier trial. n213 In no case can preventative detention exceed the amount of time an accused would receive if convicted of the alleged offense (principio de proporcionalidad). n214 Further, pretrial detention is only possible upon request by the Public Ministry, the exclusive entity in charge of public prosecution. n215

Plea bargaining: An abbreviated procedure n216 (proceso abreviado) for less serious offenses (those which do not affect the public interest and which carry sentences of under five years) allows prosecutors and defendants to reach an agreement on a plea without going to trial. The agreement requires the approval of the instruction judge. n217

Trial: Public prosecution is the exclusive domain of the prosecutor. Judges cannot begin a trial on their own initiative. n218 Three judges now hear the cases. All testimony is oral rather than written. Parties can now challenge the evidence in court. n219

Executive Judge (juez de ejecucion): Executive courts (juzgados de ejecucion) oversee compliance with sentence requirements, human rights conditions for prisoners, and the rehabilitation of prisoners. n220

Appeal: In general terms, under the new Code, appeals are only allowed for erroneous application of the law or the legal conduct of [*396] the trial (recurso de apleacion especial). n221 Questions of law could ultimately go to the Supreme Court (recurso de casacion). n222 In extraordinary cases, a special review procedure will be available when new, clearly disculpatory evidence becomes available after the trial (recurso de revision). n223 The recurso de revision corresponds as well to the Supreme Court. n224

Public defense: A professional public defense service was created. n225 Under the old system, public defenders, usually law students, were not paid. n226

Habeas corpus: Habeas corpus petitions presented on behalf of missing or detained individuals will now have to be carried out. Judges will perform this task and will have the power to conduct searches, inspect police, military and other installations. Judges may also designate others to perform this task, including human rights representatives, the Human Rights Ombudsman, or relatives of the individual missing or detained. n227
Not everyone was enthusiastic about the change in the Criminal Procedure Code. Luis Salas, Director of the Center for the Administration of Justice at Florida International University argued that the government lacked the institutional capacity to carry out the reforms. n228 Others were suspicious of the reforms backed by Rodil due to his own controversial record. He had been a legal advisor to the Council of State under military dictator Rios Montt. He had been linked in public perception to the special courts (tribunales de fuero especial) which carried out extrajudicial killings. As Minister of Interior under Cerezo, several notorious political killings occurred and went unpunished. n229

D. Oral Proceedings.

Under the French system, major criminal offenses are tried in the Assize Courts (French: cours d' assises). The case file, or dossier, is available to all the judges prior to the trial. However, under the French "principle of orality," all prosecutions in the Assize Courts require that evidence be brought out in open court. n230 Despite the pres [*397] ence of oral proceedings, the French system is still classified as inquisitorial, since an instruction judge still presides over the police investigation. n231 In this sense, the reform of the Guatemalan Criminal Procedure Code can be seen as much more radical because it not only introduced oral proceedings, but also converted from an inquisitorial to an adversarial model.

The Peace Accord documents call for oral judicial processes as a way to improve the delivery of justice services. n232 Still, while oral proceedings are supposed to be the rule under the new code, n233 there is an exception. In special cases, when it is impossible to wait for trial, an anticipo de prueba is possible. A judge oversees this process of taking and approving of evidence in advance of trial. n234

Another curiosity of the Guatemalan Code, at least from the U.S. perspective, is its standard for determination of guilt. The U.S. standard for conviction is "beyond a reasonable doubt." In Guatemala, the comparable standard is referred to as "sana critica" (reasoned judgement). n235

E. Plea Bargaining and Case Settlement.

In a number of cases, the new code allows for settlement of cases short of a full trial. These special procedures are often referred to in Spanish as "procesos de agilizacion." n236

The first mechanism is the "criterio de oportunidad" ("principle of opportunity"). n237 In the U.S. system, it would be much like discre [*398] tionary "nolo pros" (dismissals). n238 The criterio de oportunidad applies when a prosecutor determines that the particular facts in a case are such that it makes little sense to carry out the prosecution. n239 Such is the case in the Spanish and Mexican criminal procedure codes. n240 In Guatemala, the judge need not accept the prosecutor's recommendation. n241 Such dismissals would often occur when the victim and the accused have reached an agreement to repair the damage and compensate the victim, n242 and where the action was not the sort that would result in imprisonment for more than five years. n243

A second mechanism, "criterio de oportunidad para complices o encubridores" ("principle of opportunity for accomplices") is similar to the U.S. concept of witness immunity. n244 In Guatemala, the prosecutor again makes this decision. n245

The third mechanism is "desestimacion." Under Guatemalan law, the prosecutor moves to file (archivar) a case when either no crime has been committed or when some other reason prevents prosecution. n246 Similarly, in the U.S., this discretion rests with a prosecutor. n247 Cases are filed, for example, when an investigation fails to reveal the identity of the person who committed the crime. Another example might be if the individual has been declared a fugitive. In Guatemala, the prosecutor's decision can be revoked by a judge at the request of the victim, in the event the victim can provide leads sufficient to justify the continuation of the investigation. n248

Guatemalan law provides a fourth mechanism similar to preprosecution diversion in the U.S. This procedure, referred to as "suspension condicional de la persecucion penal," n249 is currently under- [*399] used in Guatemala, since no structures, regulations or forms facilitate its use. n250

A fifth mechanism allows the conversion of public prosecutions into private actions (conversion de la accion publica en accion privada). n251 This can be carried out at the prosecutor's discretion and does not need the judge's approval. n252 The process can be used whenever the "criterio de oportunidad" would apply, or in any case of crime against commercial property. For more serious crimes, the process can still be used, if the injured party guarantees an effective prosecution. n253 Once authorized by the prosecutor, the decision is irrevocable. n254

A sixth and final mechanism, the "procedimiento abreviado," n255 is a combination of the U.S. concepts of a "guilty plea" proceeding and plea bargaining. Where a prosecutor believes that a sentence of two years or less is "sufficient," then the prosecutor can request this procedure. n256 The procedure also requires: (1) consent by the defendant and the defense attorney, (2) an admission of guilt, and (3) acceptance of the proposed disposition. n257

In this case, a judge must hear the defendant and consider the criminal evidence presented. The defendant has the right to present mitigating proof or technical issues of innocence. The judge can acquit or condemn. No punishment can exceed the limit recommended by the prosecutor. Alternatively, a judge can refuse to accept the plea, and proceed as if the offer were never made. n258 In this sense, all the elements of the "bargain" (proceso de consenso) are present. n259 Again, there are no forms, structures or regulations beyond the Code itself to govern or give form to these proceedings. Consequently, they are either drastically under-used or are abused for other purposes potentially inconsistent with a rule of law. n260

[*400] In Guatemala, there is no national legal doctrine, no case law and no Latin American comparative law on how plea bargains and other settlement mechanisms should work. n261 U.S. legal doctrine could be very important to fill these holes.

F. Popular Justice and the 1997 Reforms to the Code.

For many, a major concern about "popular justice" is due process. Popular Courts ("tribunales populares") have sprouted in Guatemala. These "courts" resolve criminal disputes quickly, and usually have juries of hundreds of town residents. Needless to say they do not follow the procedures of the Code of Criminal Procedure. n262 Incredibly, the Arzu Administration is encouraging creation of "Local Security Boards," n263 despite decades of human rights violations at the hands of "Civil Patrols." n264 Not surprisingly, there is an inverse relationship between the level of education and the belief that citizens can take law into their own hands because of the lack of justice in the formal system. n265

Further examples of people taking law into their own hands are the rampant popular lynchings of criminal suspects. n266 According to [*401] Interior Minister Rodolfo Mendoza, these popular acts of justice are a reaction to the slowness and inefficiency of the formal system. n267 Some times public authorities arrive in time to prevent the mob action, other times not. n268

The Peace Accord documents call for incorporation of alternative mechanisms to promote dispute resolution. n269 Further, the Accord on the Identity and Rights of Indigenous People recognizes that indigenous people have been marginalized from participating in political decisions affecting the country. n270 That same accord recognized indigenous law (normas consuetudinarias) as governing indigenous community life. n271

[*402] Oral criminal procedure under the new Criminal Procedures Code should allow for greater access to the legal system for the poor and indigenous people. n272 Indigenous customary law (derecho consuetudinario, or derecho maya) is an oral process. n273

In response, on September 10, 1997, Congress approved new reforms to the Criminal Procedure Code. n274 The reform was opposed by then Attorney General Hector Hugo Perez Aguilera, Court President Angel Alfredo Figueroa, and law school dean, Francisco de Mata Vela. All three thought that Constitutional reform should proceed any change to the Criminal Procedure Code, if change was needed at all. n275 One major sticking point was the role of community courts with non-attorney judges using local law as compared with the more traditional point of view of formal law with attorney judges. Further, both the Court and Public Ministry were miffed that Congress had passed major legislation without their full input. n276 Still, the idea of the reforms is to allow prosecutors to concentrate on more important criminal offenses. n277

A principle change in law applies to certain crimes where the penalty is a misdemeanor (falta), a traffic-related crime, or where the penalty is a fine. n278 In these cases, a Justice of the Peace (juez de paz) can preside in an oral trial without a prosecutor. n279

[*403] The legislation also creates Community Courts in five new locations. n280 The new Community Courts have the authority to resolve less pressing criminal cases, n281 those with a penalty in the formal system of five years or less. n282 These community courts can use local law or practice, including indigenous law (derecho consuetudinario), to resolve the conflicts assuming the decision does not violate the Constitution, human rights legislation, international treaty obligations n283 or national law. n284 The idea of the community courts is to advance dispute settlement in indigenous areas among indigenous people. n285

Use of local or indigenous law allows the communities to come up with local solutions to local problems. The three judges on the panel need not be lawyers, but must know the local legal practice and be able to opine on constitutional and human rights law. The procedure is oral and public, and defendants have a right to counsel. The community court's job is really one of ratifying agreements between local litigants with criminal law disputes, so long as the Constitution or human rights precepts are not violated. If the litigants themselves cannot reach an agreement, there is always recourse to the formal legal system. n286

Community court decisions have res judicata effect (cosa juzgada) for defendants. For plaintiffs, the decisions are executable judgments: [*404] should a defendant not comply, the decisions can be executed in ordinary civil courts. n287

Unfortunately, the legislation also requires that any settlement proposed by a community court (juzgado comunitario) be consistent with national law. n288 This will mean that use of customary law will be severely restricted only to those cases where there is no national criminal law on point. In short, the community courts will not be taking full advantage of customary law. On the contrary, use of customary law will be extremely selective. In cases where a community court does use local law, and it contravenes national law, the decision of the community court could be set aside on appeal to the formal court system. n289

The community courts have another defect in that the legislation creating them was passed without consultation of the communities themselves. n290 Guatemalan law requires that any legislation affecting indigenous communities be discussed with communities prior to passage. n291 In this particular case, the Criminal Procedure Code reform did not include any consultation process, making it vulnerable to attack on Constitutional grounds. n292

Perhaps because of a lack of a consultative process, the new community courts create a new authority at the local level which previously did not exist, instead of reinforcing existing authority. n293 In this sense, the new community court structure could be subject to the criticism that it distorts traditional systems of authority at the local level. n294

Yet another drawback of the community courts is their limited subject matter jurisdiction. n295 Many conflicts involve both civil and criminal elements. A conflict such as a dispute over property boundaries, if left unresolved, could turn bloody later on. However, the community courts have no authority to resolve a civil conflict until it later [*405] becomes a criminal problem. This artificial distinction between civil and criminal conflicts means that courts will be hamstrung in resolving what the community feels are its disputes at the local level. n296

On the positive side, a Commission has been created to evaluate the progress of the community courts. n297 Also, MINUGUA is preparing an empirical study on indigenous dispute resolution which should provide critical information on how disputes are in fact handled by communities. n298 Further, USAID is working on models for community level conciliation processes, with pilot activities in Zacapa and Quetzaltenango. n299 As community courts gain experience, and as the USAID and MINUGUA work is brought before the Commission, it is hoped that there can be mid-course adjustments to the community court model. n300

"Conciliation centers" are also created under the new legislation. These "centers" are parallel to the community courts, and have the same legal effects, but are effective for both indigenous and ladino communities. To become a "center," an attorney can simply notify the court that the attorney intends to be a conciliator. No further qualification is required. n301

How a conciliation procedure works in practice may be akin to a contingent fee for criminal prosecution. An aggrieved client goes to the attorney's office. The attorney agrees to represent the client in negotiations with the accused. If the attorney can reach a settlement, the attorney can write up the deal and take a percentage of any settlement, subject to statutory limitations on attorneys fees. If there is no deal, the attorney can prosecute in the normal courts, both civilly and, where appropriate, criminally. Both the Community Courts and the Conciliation Centers should help reduce the demands on the formal system while allowing parties to work out their own problems with legal backing. n302 Curiously, unlike the Community Courts, the Concil [*406] iation Centers do not have to abide by national law, only the Constitution and international treaties on human rights. n303

The new legislation also allows private citizens to bring private criminal actions in certain cases, n304 such as damages to honor, intellectual property, corporate secrets or check fraud. n305 In these cases, the individual interest and damage is deemed to be more important than the social damage: private interest in prosecution outweighs public interest. n306 Another class of crimes, including incest and rape, require the victim to present a complaint before prosecutors will bring charges. n307

IV. The Present and Future.

A. Continued Practice of the Old Code.
According to one account, over 500 judicial sentences under the new criminal procedure code had legal deficiencies either in applying law to facts or in evaluating evidence. n308 Consequently, while the law may have changes, there remains a long way to go to make that change a reality in practice.

B. The Challenge of Access to Legal Services and the Role of Public Defenders.

In the French Inquisitorial system, there is normally a right to a defense attorney. Since 1857, French law has required that an attorney represent the accused even during the process of the instruction. French law also requires that the accused be informed of a right to [*407] remain silent during the instruction. Nevertheless, the French process of instruction nearly always looks for a confession in cases which do not end with a discharge. n309 In Cuba, the guarantee of a right to counsel at public expense has been built into the Cuban code for some time. n310

Until recently in Guatemala, the only access to criminal defense for the accused was through private attorneys or a volunteer from the Bar Association discharging ethical duties to represent the indigent. n311 In April 1954, San Carlos University created the first bufete popular in operation in the country. Now, the universities of San Carlos, Rafael Landivar, Mariano Galvez and Francisco Marroquin have all created bufetes populares. n312 Under new legislation, the bufetes populares may no longer represent the indigent, unless under supervision and collaboration of a practicing attorney. n313

The use of students as defenders, or obligating private attorneys to defend the indigent, was not perceived as effective. Defendants were not properly represented. Further, the Constitution forbids forcing anyone to work without compensation. n314 The Convencion Americana sobre Derechos Humanos requires that the accused have a defender, paid for by the state in cases where the defendant cannot afford one. n315

Based on these observations, a Public Service for Criminal Defense (Servicio Publico de Defensa Penal) was created under the Presidency of the Court. n316 However, despite creation of the new Service, cases remain where accused individuals languish in jails far beyond the time they would receive even if convicted. The Public Defender Service is simply so overwhelmed that it cannot effectively respond to [*408] the demand. n317 According to former Bar Association President Alfonso Novales Aguirre, in such cases, the state may be responsible civilly for its negligence. Specifically, the Supervision de Tribunales must guard against such abuse, Novales warned. n318 Still, according to the Commission for the Strengthening of Justice, about half of low income criminal detainees lack access to public defenders. n319

The Public Defender Service continues to undergo change. n320 While new legislation comes on line, n321 there are new calls to provide a service for indigenous Maya, n322 and more specifically, defenders for Maya women. n323 The new, autonomous, independent Service comes into effect in mid-1998. n324

V. Conclusions about the New Code.

Whether a legal system is classified as inquisitorial or adversarial is becoming more and more a question of history and style rather than substance. n325 Whether Guatemala has an inquisitorial or adversarial system will not decide whether justice will be served: political systems can be abused to reach intellectually dishonest results even when the weight of the law would go another way. n326

At times, authors have alleged that the inquisitorial system was not "democratic." n327 In fact, the old Guatemalan Code was criticized [*409] as criminal authoritarianism, allowing the state to act on the margins of legality, with judges structurally incapacitated from criminal investigation and an ineffective Public Ministry. n328 While it is true the adversarial system is used in countries like Canada, the United States and Britain, it is also true that Nazi Germany used accusatorial procedures, vesting great power in the prosecutor. n329 Meanwhile, many of the world's democracies today use basically an inquisitorial system. n330

To its credit, Guatemala has risen above this debate over inquisitorial versus adversarial systems. Whether or not in theory one system is better than the other, it is clear the inquisitorial system utilized in Guatemala was bankrupt. The country made a bold choice opting for reform, and is now poised to reap the benefits. For the first time, defendants can hear publicly what they are accused of, present oral defenses, and have legal representation in their own language. In a country with a history of massive human rights abuse, this is a monumental step forward. The international community should recognize this advance toward a restoration of the rule of law.

VI. Conclusions: Toward Implementation of the Peace Accords.

The "Accord on Strengthening Civil Authority and the Role of the Armed Forces in a Democratic Society" recognized the obsolescence of current legal procedure, the slowness of process, the lack of modern court administration, the lack of supervision over justice sector employees and the presence of corruption and inefficiency. n331 That document called for an end to impunity and corruption. n332
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