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At the forum "Young and Committed", Commissioner Iván Velásquez called upon the youth to join forces in fighting impunity.

Confidentiality in criminal proceedings

Guatemala, August 31, 2011. The trial is the final stage of criminal proceedings where a court receives evidence collected by parties, listens to arguments and issues a judgement. A trial is a public event so that the judicial branch can provide transparent justice administration for its citizens. The steps taken in criminal proceedings are not divulged among individuals who are not participating therein, thereby ensuring that the rights of parties are upheld and that the investigation is a success.

The confidentiality of criminal prosecution investigations is a legal tool that allows authorities to progress with inquiries in cases, avoiding information filtering and the possibility of the accused being warned and having time to flee.

What is confidentiality

  • The confidentiality of criminal prosecution investigations is a legal tool that allows authorities to progress with inquiries in cases, avoiding information filtering and the possibility of the accused being warned and having time to flee.
  • The principle of confidentiality is stipulated in Section 314 of the Code of Criminal Procedure, which indicates that the MP shall request any necessary measures to protect and isolate evidence to prevent contamination or destruction of clues and other material evidence.

A judge can impose confidentiality in cases where it is necessary to maintain the secrecy of proceedings because the failure to do so could jeopardize the possibility of achieving a successful outcome. During the investigations phase, it is possible for confidentiality to be maintained, in which case, the parties must not have knowledge of certain aspects or even the whole of the investigations.

This legal measure protects the physical integrity of witnesses, experts and justice officials: there is no risk that evidence used by authorities in an investigation will be destroyed or contaminated and the effectiveness of the arrest orders issued against accused individuals will be guaranteed.

The principle of confidentiality is stipulated in Section 314 of the Code of Criminal Procedure, which indicates that the Public Prosecutor’s Office (MP) shall request any necessary measures to protect and isolate evidence to prevent contamination or destruction of clues and other material evidence.

This Section sets forth that all investigative actions shall be kept out of reach of persons not involved in criminal proceedings: "Proceedings shall only be scrutinized by the accused (after being charged) as well as individuals who have been approved to participate, the defence counsel and officials". Persons not involved in a confidential proceeding will not be allowed access to case information, in order to avoid, among other things, any interference with the case investigations.

The Public Prosecutor’s Office (MP) may maintain the confidentiality of a proceeding for no longer than ten calendar days, as long as an individual has not been indicted. If the MP deems necessary, it may request another extension for the same amount of days, and in such cases, the parties involved may request the judge to lift the confidentiality.

Furthermore, the Anti-Drug Trafficking Law provides for the confidentiality of proceedings during investigation and preparatory phases. The Anti-Organized Crime Law—which seeks to prevent, tackle, dismantle and eradicate organized crime—stipulates that during the investigation of crimes involving organized crime groups, upmost confidentiality must be ensured.

This Law sets forth that until a judge formally charges an individual in a criminal proceeding, no access will be available to special investigation methods such as undercover agents, communication intercepts and controlled deliveries.

The reason for this confidentiality stems from the fact that if criminal groups had knowledge of such proceedings, the possibility of achieving a successful outcome could be jeopardized and the lives of the officials involved would be put at risk.

Although some defence lawyers have, on occasion, expressed their disagreement with the confidentiality of judicial proceedings, citing the violation of the right to a defence, the Court of Criminal Appeals and the Constitutional Court (CC) have ratified its lawfulness.

One such case was that of the Valdés Paiz brothers, who—while absconding from justice authorities—denounced the violation of the right to a defence on the grounds that their defence lawyers had been denied access to the case file and, therefore, they requested that the confidentiality be lifted. The First Chamber of Appeals rejected the two amparo appeals filed by the defence lawyers of the accused because they lacked any legal basis, and the CC upheld the decisions passed down by the Chamber.

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        About Guatemala
  The Republic of Guatemala, a mountainous country that lies in the Central American isthmus, has an estimated population of 13 million people.
  Guatemala won its independence in 1821, following almost three centuries of Spanish colonial rule.
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