Guatemala: Review of criminal matters before Covid-19

Written by:

Astrid Dominguez

 

Responsibility of the Legal Representative for the non-implementation of health and safety measures in the workplace (COVID-19 Protocol)  

In the authorizations to operate that the MINECO extends to the companies it establishes: “The legal representative (…) makes himself available to the competent authorities for verification of compliance with the above conditions and assumes criminal and civil liability for failure to comply with them”.

 

The possible criminal sanctions for the legal representative for non-compliance with the conditions imposed by the MINECO to allow the company to operate, may be, in terms of health, the following: Spread of Disease (Article 301 of the Penal Code) and Contravention of Sanitary Measures (Article 305 of the Penal Code)


The procedure that would be used, in our opinion, is that after the inspection by the competent authorities, any non-compliance with occupational health and safety standards is reported to a criminal court so that the Public Prosecutor’s Office is ordered to initiate the relevant investigations. It is suggested, therefore, that when the authorization to operate is processed, the necessary plans should be in place to comply with the health requirements requested by the State and thus avoid any non-compliance that would cause the legal representative to incur criminal liability.

 

Crimes:

ARTICLE 301. Spread of disease. Whoever, on purpose, spreads a disease that is dangerous or contagious to people, shall be punished by imprisonment from one to six years.

ARTICLE 305. Contravention of sanitary measures. Anyone who violates the measures imposed by law or those adopted by the health authorities to prevent the introduction or spread of an epidemic, a plant pest or an epizootic likely to affect human beings, shall be punished with imprisonment of six months to two years.

 

I. Liability of a legal representative for the acquisition of illness at work and subsequent death of a worker

In the event of deaths caused by COVID-19 that were acquired in the workplace due to the lack of implementation of health protocols related to COVID-19, the legal representative may be charged with the crime of culpable homicide (Article 127 of the Penal Code).

This lack of care will refer specifically to the action or omission carried out within the company with inobservance of norms and rules of caution or precaution, required by the MINECO derived from the State of Calamity that we currently live in Guatemala, since these norms, seek to avoid a damage or prejudice on third parties. To be able to consider this action or omission as generating criminal liability, they must be generating a legally relevant risk.

Crime:

Manslaughter. Article 127: The perpetrator of manslaughter shall be punished by imprisonment for a term of two to five years. Where the act also causes injury to others or results in the death of several persons, the penalty shall be three to eight years’ imprisonment. (…)

 

II. Criminal Liability of Legal Entities:

The ordinary course of business and the decision-making process of legal entities are carried out by individuals, who usually have management functions, which entails the commitment and responsibility to carry out this function based on the principle of loyalty. We can distinguish, then, two groups of duties that must be fulfilled by the administrators, being these:

  1. The duties of diligence or care, and
  2. The duties of loyalty.

In Guatemala, under article 38 of the Criminal Code, due control is required to be applied by legal persons to their collaborators, workers, representatives, managers or directors, since they carry out activities on behalf of the legal person, which obliges it to have due control over the activities and decisions made by individual persons.

In Guatemala, therefore, both the legal person and the individuals who have committed the offence are held responsible, either because both the individual and the legal person have benefited from the offence, or because the legal person did not take due care over the actions not only of its legal representatives, but also of its managers, directors or employees, leaving the possibility of identifying the person directly responsible for the commission of the offence. The legal person itself is liable to a fine of from ten thousand dollars (US$10,000.00) to six hundred and twenty-five thousand United States dollars (US$625,000.00), or the equivalent in national currency.

 

III. Criminal liability of the legal person:

Article 38 of the Criminal Code: “With regard to legal persons, directors, managers, executives, representatives, administrators, officials or employees of them who have intervened in the act and without whose participation the act would not have taken place shall be held responsible for the respective offences and shall be subject to the same penalties indicated in this Code for individual persons.

Legal persons shall be liable in all cases in which, with their authorization or consent, their directors, managers, executives, representatives, administrators, officials or employees participate; in addition, when any of the following circumstances occur:

  1. When the criminal act is committed by the omission of control or supervision and the results are favorable to him.
  2. When the criminal act is committed by decision of the decision-making body. In all offences for which legal persons are liable and for which there is no penalty, a fine of from ten thousand dollars (US$10,000) to six hundred and twenty-five thousand United States dollars (US$625,000), or the equivalent in national currency, shall be imposed.

The fine shall be determined in accordance with the economic capacity of the legal person and shall be set taking into account the circumstances in which the offence was committed. In case of recidivism, the definitive cancellation of the legal personality shall be ordered.

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