Guatemala 1985 Constitution (reviewed 1993) - Page 6 of 8

Table of Contents

TITLE VI. Constitutional Guarantees and Defense of the Constitutional Order

CHAPTER I. [The Recourse of] Personal Exhibition

Article 263. [The] Right to [the recourse of] Personal Exhibition

Whoever finds himself [or herself] illegally imprisoned, detained, or restrained in any other way in the enjoyment of their individual freedom, threatened with the loss of the same, or suffers ill-treatment [vejámenes], even when the imprisonment or detention is based on the law, has the right to petition for an immediate exhibition before the tribunals of justice for the purpose of restitution of[,] or guaranteeing of[,] liberty, of bringing the ill-treatment to an end, or terminating the constraint to which he [or she] has been subject.

If the tribunal decrees the liberty of the illegally confined [recluida] person, the same will be freed at the same hearing and place.

When it is so petitioned or the judge or tribunal deems it pertinent, the requested [recourse of personal] exhibition will occur at the location where the detained person is being held, without previous opinion [aviso] or notification.

The [recourse of] personal exhibition of the detainee in which favor it was requested is unavoidable [es ineludible].

Article 264. Responsibilities of the Offenders [Infractores]

The authorities who order the concealment [ocultamiento] of the detainee or who refuse to present him [or her] to the respective tribunal or who in any form evade this guarantee, as well as the executive agents, will be guilty of the offense of abduction and will be sanctioned in accordance with the law.

If as a result of the proceedings [diligencias] pursued the person benefitting from the [recourse of] personal exhibition may not be located, the tribunal will order[,] of office[,] immediately an investigation of the case until its total clarification.

CHAPTER II. The Recourse of] Amparo

Article 265. [The] Proceeding of [the recourse of] Amparo

[The recourse of] amparo is instituted for the purpose of protecting persons against the threats of violations of their rights or to restore the rule of the same when the violation has occurred. There is no area which is not subject to [the recourse of] amparo, and it will always proceed whenever the acts, resolutions, provisions, or laws of [an] authority should imply a threat, restraint, or violation of the rights which the Constitution and the laws guarantee.

CHAPTER III. [The] Unconstitutionality of the Laws

Article 266. [The] Unconstitutionality of the Laws in Specific Cases

In specific cases, in every process of whatever competence or jurisdiction, in any instance and in cassation and even before a sentence is decreed, the parties will be able to present as an action [acción], plea [excepción], or incidental issue [incidente], the total or partial unconstitutionality of a law. The tribunal must decide concerning it.

Article 267. [The] Unconstitutionality of the Laws of General Character

The actions against the laws, regulations or provisions of a general character which contain a partial or total defect [vicio] of unconstitutionality, will be heard directly before the Tribunal or Court of Constitutionality.

CHAPTER IV. [The] Court of Constitutionality

Article 268. [The] Essential Function of the Court of Constitutionality

The Court of Constitutionality is a permanent tribunal of privative jurisdiction, of which the essential function is the defense of the constitutional order; [it] acts as a collegiate tribunal with independence from the other organs of the State and exercises [the] specific functions assigned to it by the Constitution and the law of the matter.

The economic independence of the Court of Constitutionality, will be guaranteed through a percentage of the revenues that correspond to the Judicial Organ.

Article 269. Integration of the Court of Constitutionality

The Court of Constitutionality is integrated by five titular magistrates, each of whom will have his [or her] respective substitute. When it takes cognizance of matters of unconstitutionality against the Supreme Court of Justice, the Congress of the Republic, or the President or [the] Vice-President of the Republic, the number of its members [integrantes] will be raised to seven, with the other two magistrates being selected from a drawing among the substitutes.

The magistrates will remain in their functions for five years and [they] will be appointed in the following manner:

One magistrate by the plenary of the Supreme Court of Justice;
One magistrate by the plenary of the Congress of the Republic;
One magistrate by the President of the Republic in the Council of Ministers;
One magistrate by the Superior University Council of the University of San Carlos de Guatemala; and
One magistrate by the Assembly of the College of Attorneys.

Simultaneously with the appointment of the titular, that of the respective substitute will be made, before the Congress of the Republic.

The installation of the Court of Constitutionality will become effective ninety days after that of the Congress of the Republic.

Article 270. Requirements of the Magistrates of the Court of Constitutionality

In order to be a magistrate of the Court of Constitutionality, the following requirements must be met:

To be a Guatemalan of origin;
To be a collegiate attorney belonging to the College of Attorneys;
To be of recognized integrity [honorabilidad]; and
To have at least fifteen years of professional experience [graduación].

The magistrates of the Court of Constitutionality will enjoy the same privileges and immunities as the magistrates of the Supreme Court of Justice.

Article 271. [The] Presidency of the Court of Constitutionality

The Presidency of the Court of Constitutionality will be performed by the same titular magistrates that compose it, in rotating form, for a period of one year, commencing with the oldest [member] and following in descending order of age.

Article 272. Functions of the Court of Constitutionality

The Court of Constitutionality has the following functions:

To take cognizance in sole [unique] instance of the challenges interposed against the laws or provisions of general character, objected to for partial or total unconstitutionality;
To take cognizance in sole instance in its status of Extraordinary Tribunal of [the recourse of] amparo, of actions of amparo interposed against the Congress of the Republic, the Supreme Court of Justice, [or] the President or [the] Vice-President of the Republic;
To take cognizance on appeal of all [recourses of] amparo interposed before any of the tribunals of justice. If the appeal should be against a resolution of amparo of the Supreme Court of Justice, the Court of Constitutionality shall be expanded by two members [vocales] in the form specified in Article 268;
To take cognizance on appeal of all the challenges against the laws objected to for unconstitutionality in specific cases, in any trial, in cassation, or in the cases contemplated by the law in the matter;
To issue an opinion regarding the constitutionality of treaties, agreements, and bills of law at the request of any of the organs of the State;
To take cognizance and resolve [the] issues concerning to any conflict of jurisdiction in matters of constitutionality;
To compile the doctrine and constitutional principles that have been invoked with the purpose of resolving them through [the recourse of] amparo and [through the recourse] of unconstitutionality of the laws, [and] maintain the jurisprudential bulletin or gazette;
To issue an opinion on the unconstitutionality of the laws vetoed by the Executive alleging unconstitutionality; and
To act, to render opinions [opinar], to dictate, or to take cognizance of those matters under its competence established in the Constitution of the Republic.

CHAPTER V. [The] Commission and [the] Procurator of Human Rights

Article 273. [The] Human Rights Commission and [the] Procurator of the Commission

The Congress of the Republic will appoint a Commission of Human Rights formed by a deputy for each political party represented in the corresponding period. This Commission shall propose to the Congress three candidates for the election of a Procurator, who must meet the requirements of a magistrate of the Supreme Court of Justice and will enjoy the same immunities and privileges as the deputies to Congress. The law will regulate the attributions of the Commission and of the Procurator of Human Rights to which this Article refers.

Article 274. [The] Procurator of Human Rights

The Procurator of Human Rights is a commissioner [comisionado] of the Congress of the Republic for the defense of the Human Rights guaranteed by the Constitution. He [or she] will have the faculties to supervise the administration; will exercise the office for a term of five years, and will render an annual report to the plenary of the Congress, with which he [or she] will relate through the Commission of Human Rights.

Article 275. Attributions of the Procurator of Human Rights

The Procurator of Human Rights has the following attributions:

To promote the adequate [buen] functioning and expediting [agilización] of the government administration, in matters of Human Rights;
To investigate and denounce [the] administrative behavior that is detrimental to the interests of persons;
To investigate every type of denunciations that may be brought by any person regarding the violations of Human Rights;
To recommend privately or publicly to the functionaries the modification of any administrative behavior objected to;
To issue public censure for acts or behavior against the Constitutional rights;
To promote actions or recourses, judicial or administrative, in those cases in which they proceed; and
The other functions and attributions assigned to him [or her] by the law.

The Procurator of Human Rights, of office[,] or at the instance of a person, will act with due diligence so that, during the regime of exception, the fundamental rights whose application may not have been expressly restrained may be fully guaranteed. For the fulfillment of his [or her] functions[,] every day and all hours are considered working [hours].