The Justice Sector Reform Commission recently issued a favorable opinion on initiatives 6493 and 6719, which propose reforms to the preventive detention regime and the coercive measures established by the Criminal Procedure Code.
The main objective, according to the speakers, is correct the practices that have been implemented and that have altered the application of preventive detention in Guatemala, so that it can be applied only in necessary and justified cases.
The changes also seek to avoid overcrowding and indefinite prolongation of detention without a final sentence.
The proposal requires that the first statement hearing be held 24 hours after the arrest, even with courts on duty, electronic file or videoconference.
One of the most relevant modifications is the cessation of prison if the Public Ministry does not present the investigation conclusions within the established deadlines or if the hearings of the process, as the intermediate stage in which the accusation must be presented, They are not carried out within specific deadlines.
The document that has the opinion of the Justice Sector Reform Commission includes the technical opinions of the Human Rights Ombudsman’s Office (PDH), the United Nations Organization (UN), the Institute of Public Criminal Defense (IDPP), the Public Ministry (MP) and the National Civil Police (PNC), among other institutions.
This is expected to facilitate consensus to bring the proposal to the plenary session.
Aspects for issuing preventive detention
The opinion points out several aspects that the justice system must take into account to apply the measure of preventive detention, such as exceptionality and the presumption of innocence. In this sense, it is established that preventive detention cannot be automatic or based only on the seriousness of the crime, since a prior prosecution order is required.
Among the changes to the articles of the Criminal Procedure Code 258 appears, which refers to Other cases of arrest and I know that it details the conditions under which the first statement hearings of the accused must be held.
The reform states that “the authority that ordered the arrest must hold, within a maximum period of twenty-four hours from the arrest, the first statement hearing, and as long as said hearing has not been held, transfer to any center for the prevention of liberty cannot be ordered.”
Likewise, article 259 —Preventive detention— establishes that: “in no case may the accused be ordered to enter any detention or deprivation of liberty center without the first hearing of the statement having previously been held.” “Freedom should not be restricted except in the limits absolutely essential to ensure the presence of the accused in the process.”
It also stipulates that, in any case, The Public Ministry must have a “justification” to request the preventive detention of an accusedas established in article 261 Bis: “It will be up to the Public Prosecutor’s Office to request preventive detention […] provide sufficient evidence to prove the danger of flight and obstruction of the truth.”
Regarding the danger of flight, stipulated in the reform of article 262, it is established that “to decide on the danger of flight, the circumstances of each accused will be taken into account.” In this sense, it proposes that aspects such as roots in the country, the behavior of the accused and the previous conduct of the accused must be taken into account, for which the MP must prove the risk of flight.
Meeting deadlines
Sources from the Justice Sector Reform Commission explained that Specific deadlines are set for the Public Ministry, aimed at avoiding the undue prolongation of preventive detention due to inactivity of the investigating entity.
Article 324 Bis establishes a period of three months for the MP to request the conclusion of the preparatory procedure (indictment or dismissal). If you do not do so, the judge will grant three additional days. If inaction persists, the Public Prosecutor’s Office will be notified to adopt disciplinary measures and up to eight more days will be granted as a maximum. Once that period has expired without a request, the judge will order the provisional closure and the release of the accused.
Likewise, article 272 establishes that when a judge declares lack of merit —due to lack of elements to issue an indictment order— The MP has six months to present new elements of investigation and formalize a new case. If you do not do so within that period, the case will be permanently archived.
Article 268, linked to article 324 Bis, establishes in its paragraph 6 that “the release of the accused or defendant will be ordered immediately.” […] When the term established in article 324 Bis of this code expires, the Public Ministry will not formulate a conclusive act or any other form of termination of the process.”
In this case, it was explained that If the MP lets the established deadlines expire —three months, extensions and grace periods— without presenting an accusation, dismissal or other form of conclusion, the judge will order the immediate release of the accused who is in preventive detention. This application will be automatic.
Other important aspects
The opinion of the Justice Sector Reform Commission also contemplates other important aspects, such as:
- Periodic review of preventive detention (article 277): in this case, the accused may request, at any time, the review if the circumstances change. The judge must hold a hearing within fifteen days.
- The prohibition of alternative measures for serious crimes is maintained (article 264 Quater): the alternative measure It will not apply to crimes such as intentional homicide, murder, aggravated rape, kidnapping, extortion and drug trafficking. However, it maintains the possibility of financial bail in tax and customs crimes.
- Review of preventive detention measures (article 277): it is established that the judge may use any of the means of telematic control if, in his opinion, the circumstances of the case warrant it. In that case, it may exonerate the payment of said control when the defendant duly justifies it.
- Creation of the Coercive Measures Control Unit in the Judicial Branch (article 264 Ter): it will be in charge of collecting information and monitoring deadlines and alerts on cases related to prolonged preventive detention.
Danger of flight and obstruction of the truth
According to the analyst Javier Monterrosoit is important that Congress make changes to the application of preventive detention in the country. However, the expert emphasizes that the measure should be applied only in cases in which there is “truly” a risk of flight or “risk of obstructing the truth.”
“What is wanted is that those people who are at risk of flight or who may hinder the investigation of the truth, do have to be in preventive detention. But, for the majority of people, they can face the crimes with a different alternative measure, since preventive detention should not be applied,” he states.
Monterroso emphasizes that, in addition to the regulation of preventive detention, it is also necessary that from The Legislature regulates other aspects to make the application of the measure more efficient, such as the filing of amparos.
“The issue of the duration of the processes, especially now, this phenomenon of suspension of hearings is occurring, but, even if hearings are not suspended, there is the abuse of protection in that part of the process where protection should not fit. Judicial protection must be regulated; these are things that the Justice Sector Reform Commission should see. It cannot be that in a judicial case protection is used so much, it has to be regulated and the application limited,” he concludes.