Corporate Criminal Law in Guatemala and Its Importance

This article is intended for all commercial corporations, whether they are partnerships or sole proprietorships, that are or have been victims of crimes affecting their assets, such as swindling, fraud, material and ideological forgery, money laundering and other assets, theft, among others.

According to Theodore S. Greenberg, Linda M. Samuel, Windgate Grant, and Larissa Gray, in their work “Stolen Asset Recovery: A Good Practice Guide for Non-Conviction Based Asset Forfeiture,” it is estimated that:

“The cross-border flow of global assets resulting from criminal activity, corruption, and tax evasion is estimated to be between US$1.41 trillion and US$1.61 trillion per year.

Furthermore, the amount of money stolen from developing and transition economies ranges from US$$20,000 million to US$$40,000 million, a figure equivalent to between 20 and 40% of official development assistance flows. The damage resulting from such fraud includes the erosion of public institutions and a loss of trust in them, the weakening of the private investment climate, and the corruption of mechanisms for delivering social services for basic health and education programs.”

Corporate crime.

In addition to international crime, criminal acts committed between commercial entities (companies or sole proprietorships) also frequently occur, whether legally constituted in the country or “shell” or “front” companies, with the objective of committing considerable private financial fraud.

Globalization and the ease of starting businesses in this era of humanity have also facilitated the commission of criminal acts such as scams, smuggling, tax evasion, ideological and material falsification, fraud, and money laundering, among other offenses. These are committed by unscrupulous individuals hidden under the guise of private companies, corporations, organizations, and/or non-governmental associations that may be operating normally or even shell companies dedicated solely to committing crimes and defrauding individuals and even corporations with significant economic activity.

Crime Prevention.

Derived from the previous context, it is important to have ongoing legal advice, meaning preventative advice, to investigate, review, and approve any legal transaction deemed lawful, prior to any act that could compromise the company and/or the individual participating in a legal act, signing contracts, acquiring shares of other companies, contributing assets to businesses, and any other action that compromises business or individual assets.

Legal counsel in any negotiation is indispensable for preventing future legal problems. However, individuals, private companies, and even large commercial corporations often undertake legal actions without consulting their trusted law firm, making them more susceptible to becoming victims of crimes. Therefore, it is important to have criminal law experts to assist companies that are victims of crimes affecting their assets. This also applies to developing a defense strategy when accused of committing a crime, especially when the alleged acts are civil in nature and not criminal, to ensure a proper technical defense is presented.

The importance of criminal proceedings for recovering assets stolen through scams, fraud, and crimes affecting property.

When a corporation has been the victim of financial harm through the commission of crimes against it, the first step to take is to approach a trusted lawyer or law firm and ensure you hire specialists in criminal matters to initiate the relevant legal-criminal proceedings. This includes filing a criminal complaint and requesting an investigation from the Public Prosecutor's Office, or continuing proceedings initiated by previous counsel that have not yielded effective results.

Legal proceedings in criminal matters, such as a CRIMINAL COMPLAINT, tend to have a positive effect, enabling viable agreements to be reached without the need to conduct the entire criminal process. This is achieved through DE-JUDICIALIZATION measures, which tend to resolve the presented conflict without the necessity of a full criminal process, thereby reaching agreements to ensure dignified reparation in exchange for ending the dispute and effectively recovering assets, as permitted by Guatemalan criminal procedure.

The importance of criminal action has an effect on the opposing party, who, in most cases, prefers to resolve the legal situation through conciliation, thereby proposing an efficient legal strategy aimed at recovering assets of all kinds, with greater efficiency and effectiveness, as long as the criminal strategies suggested by expert lawyers in the field are followed.

The advantages of resolving conflicts through conciliation.

As the trite aphorism that litigating lawyers recite indicates: “A bad settlement is better than a good trial.” Undoubtedly, the best way to resolve a conflict is through conciliation and/or out-of-court settlement for the following reasons:

1. Long, tedious, and costly processes are avoided.
2. The counterparty can avoid potential coercive measures such as arrest warrants, being subject to legal proceedings, and having substitute measures like travel restrictions, house arrest, account freezes, or seizure of real estate.
3. Future proceedings carried out by the Public Prosecutor's Office, such as searches, inspections, seizures, and confiscations of property, can be avoided.
4. Register as a Syndicate in the Public Prosecutor's Office Computer System (SICOMP), a document sometimes requested by embassies for visa or residency applications.
5. The goods in dispute are recovered more quickly and efficiently, since upon realizing the possibility of recovering assets, negotiations are initiated to return the good(s) subject to the complaint, and the criminal process is terminated, reaching firm agreements between the parties, thus avoiding the loss of the goods in dispute, which is an imminent possibility if the entire process is carried out. This is because if, at the end of the process, the accused person or corporation is bankrupt at that time, the probability of recovering an asset is nil, as there are not enough assets.
6. Debilitating measures allow the accused not to face the entire criminal process, which serves as an incentive to negotiate out of court.
7. Criminal records are avoided.
8. If an agreement cannot be reached, there are legal means to compel the accused union(s) to appear at court hearings, and if they fail to do so, coercive measures can be taken, such as requesting an arrest warrant, to ensure their presence in the criminal proceedings.
9. If there is no willingness to negotiate, the Public Prosecutor's Office continues the investigation and the process follows its normal course, which is never convenient for any defendant, if the victim's lawyers' support has been effective and the crimes have been proven. Therefore, an investigation with sufficient evidence may also lead the opposing lawyers to suggest to the defendant that they return the assets that were the subject of financial misconduct.

Conclusion.

As explained, the importance of having effective legal strategies is evident in order to follow up on these processes, which always aim to recover assets in the most effective way and conclude the processes as quickly as possible, because the object of these processes is aimed at recovering as soon as possible through agreements and not substantiating an entire process.