VZCZCXYZ0017
OO RUEHWEB

DE RUEHGT #1419/01 2051501
ZNR UUUUU ZZH
O 241501Z JUL 06
FM AMEMBASSY GUATEMALA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0186
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE PRIORITY
RHMFIUU/CDR USSOUTHCOM MIAMI FL PRIORITY
RUEABND/DEA HQS WASHDC PRIORITY
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC PRIORITY
RHMFIUU/JIATF SOUTH  PRIORITY
RHMFISS/JOINT STAFF WASHINGTON DC//J-5// PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY

UNCLAS GUATEMALA 001419 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: SNAR PGOV PHUM KCRM KJUS ASEC EAID PTER GT
SUBJECT: GUATEMALA:  CONGRESS APPROVES REVISED ORGANIZED 
CRIME LAW 
 
REF: A. GUATEMALA 631 (DTG 311341Z MAR 06) 
     ¶B. GUATEMALA 668 (DTG 042024Z APR 06) 
 
¶1.  (SBU) Summary:  The Guatemalan Congress approved a 
revised organized Crime Bill on July 19.  Passage of the bill 
was a major victory for the Embassy's efforts over the past 
three years to get Guatemala to adopt modern law enforcement 
authorities (a conspiracy statute and provisions for 
wiretapping, undercover operations, and controlled 
deliveries) that can be used against organized crime.  It was 
originally passed on March 30 but was vetoed by President 
Berger due to a technical problem with the original bill. 
The bill may yet face constitutional challenges from 
political parties and NGOs objecting to certain provisions in 
the bill.  End Summary. 
 
¶2.  (SBU) The revised bill keeps unchanged the provisions to 
allow undercover operations and controlled deliveries when 
authorized by the Prosecutor General, as well as wiretapping 
when authorized by a judge in response to a formal request 
from a prosecutor.  The new bill omits references to genocide 
and crimes against humanity that were contained in the 
original bill.  NGOs gained this deletion using arguments 
that these types of crimes were covered in international 
agreements signed by Guatemala and therefore were not an 
appropriate subject for an organized crime bill.  A 
controversial clause criminalizing groups that promote 
discrimination, hate, or violence was also deleted.  The 
revised bill also adds penalties for vehicle robbery inside 
of Guatemala - the original bill only addressed vehicles 
stolen outside of Guatemala - as well penalties for 
obstruction of justice, intimidatory extortion, and extortion 
of transportation workers (i.e. bus drivers). 
 
--------------------------------------------- --------- 
Definitions: Organized Crime Groups; Types of Offenses 
--------------------------------------------- --------- 
 
¶3.  (U) Article 2 of the bill defines organized criminal 
groups as three or more persons who come together to commit 
crimes in the following categories: 
 
-- a) those contained in the Law against Drug Trafficking; 
-- b) those contained in the Law against the Laundering of 
Money and other Instruments; 
-- c) those contained in the Immigration Law; 
-- d) those contained in the Law to Prevent and Repress 
Terrorist Financing; 
-- e) those contained the Penal Code, namely: 
------ i) embezzlement, misappropriation, extortion, fraud, 
collusion, and breach of trust; 
------ ii) evasion, cooperation in evasion, culpable evasion; 
------ iii) murder, kidnapping, aggravated assault, 
aggravated robbery, swindle, trafficking in persons; 
------ iv) terrorism; and, 
------ v) financial intervention, bankruptcy, and 
counterfeiting. 
-- f) those contained in the Law against Customs Fraud; and, 
-- g) those contained in the present law, namely: 
------ i) conspiracy, illicit association, illegal 
association of armed persons, training for illicit 
activities, illegal use of uniforms and insignias, 
obstruction of justice; 
------ ii) commercialization of vehicles and similar items 
robbed inside or outside of Guatemala; and, 
------ iii) intimidatory extortion and forced obstruction of 
public transit. 
 
 
¶4.  (U) Article 3 lists the types of offenses that are 
subject to prosecution under the conspiracy statute, which 
are identical to the crimes listed in Article 2 (the 
preceding paragraph).  The bill specifies that the penalty 
for conspiracy will be identical to the penalty for the crime 
involved, e.g. the sentence for conspiracy to commit murder 
will be the same as the sentence for murder. 
 
¶5.  (U) Illicit Association (Article 4) - which carries a 
penalty of six to eight years in prison - applies to those 
who join or belong to: a) any organization that has as its 
motive the commission of a crime; or, b) illegal associations 
of armed persons, organized criminals, or terrorist groups. 
 
¶6.  (U) Article 5 defines Illegal Association of Armed 
 
Persons, with a penalty of six to ten years in prison, as 
applying to persons who organize, promote, or belong to any 
group or association formed for the use, training, or 
equipping of firearms, if the group or association lacks 
government authorization. 
 
¶7.  (U) Training for Illegal Activities (Article 6) sanctions 
anyone who equips, organizes, instructs, or trains persons in 
military or police tactics, techniques, or procedures (TTPs) 
for the development of terrorist activities, death squads, 
private vigilante groups, or hired assassins.  The sanction 
for this offense is six to eight years in prison. 
 
¶8.  (U) Illegitimate Use of Uniforms or Insignia (Article 7), 
with a penalty three to five years in prison, applies to 
those who - with criminal intent - use, exhibit, display, or 
employ as identification, any articles of clothing, uniforms, 
or insignias that are identical or similar to those used by 
the military, police, and other government security forces. 
 
¶9.  (U) Article 8 imposes a penalty of six to ten years in 
prison for those found guilty of the importation, sale, or 
commercialization of vehicles, boats, planes, or machinery 
stolen outside or inside of Guatemala. 
 
¶10.  (U) Obstruction of Justice (Article 9) carries a 
sentence of six to eight years and applies to: 
 
-- a) anyone who uses force, threats, intimidation, or bribes 
to induce false testimony in a judicial process; 
-- b) anyone who threatens or corrupts any government 
official connected to the judicial system, or their family 
members, with the aim of influencing or obstructing a 
judicial process; and, 
-- c) any public official or employee participating in a 
judicial process who: 
----- i) protects or conceals a suspect in an investigation; 
----- ii) conceals or provides incorrect information as part 
of an investigation; 
----- iii) falsifies or alters documents or evidence; 
----- iv) acts with deliberate delay to impede an 
investigation, prosecution, or sentencing; or, 
----- v) presents false testimony. 
 
¶11.  (U) Article 10 defines Intimidatory Extortion as 
covering those who, as part of a criminal group, use 
intimidation to extort money or other benefits in public 
areas or on public transit.  This crime carries a penalty of 
six to eight years. 
 
¶12.  (U) Extorsive Obstruction of Transit (Article 11) 
prescribes a penalty of six to eight years for members of a 
criminal group who use intimidation to extort money or other 
benefits from drivers of any type of public transit. 
 
¶13.  (U) The sentences for the above crimes are increased by 
33 percent when the perpetrator has an administrative or 
supervisory role in the organized crime group, is a public 
official, uses minors to commit criminal acts, or compels 
others to participate in criminal acts. 
 
--------------------- 
Investigative Methods 
--------------------- 
 
¶14.  (U) Undercover Operations:  The bill authorizes 
undercover operations by police officers.  A prosecutor 
investigating an organized crime group can ask the police to 
conduct an undercover operation with the authorization of the 
Prosecutor General.  The prosecutor's justification must 
include the nature of the offense to be investigated, an 
explanation of why ordinary investigative means are not 
sufficient, a general outline of the activities of the 
undercover officer, and the fictitious name that will be used 
by the undercover officer.  (The real name of the undercover 
officer is to be known only to the prosecutor.)  The 
Prosecutor General can authorize an undercover operation for 
up to six months, renewable as necessary, but not to exceed 
 
one year. 
 
¶15.  (U) Controlled Deliveries:  The legislation allows the 
Civilian National Police (PNC) under the close supervision of 
a prosecutor to conduct controlled deliveries.  The 
prosecutor must make a formal request to the Prosecutor 
 
General to carry out controlled deliveries, in a manner and 
format very similar to the request to authorize undercover 
operations.  The prosecutor is required to present the 
Prosecutor General with a report on operational results no 
later than three days after the completion of the controlled 
delivery. 
 
¶16.  (U) Communications Intercepts:  The bill states that 
interception of telephones and other forms of communications 
should be conducted by specialized PNC personnel and the 
performance of these personnel should be periodically 
evaluated.  The prosecutor must make a formal request to the 
relevant investigative judge that includes information on the 
type of crime under investigation, the telephone numbers 
and/or data regarding other forms of communications that are 
subject to interception, a justification for using these 
measures, and, if available, the names and other information 
on the owners of the targeted means of communications.  The 
prosecutor should report every 15 days to the judge, and the 
judge must ensure that the intercepts conform to the 
authorization order.  Records containing transcriptions of 
the intercepts should be destroyed one year after the 
termination of a criminal prosecution or sentence. 
 
------- 
Comment 
------- 
 
¶17.  (SBU) During the past three years, the Embassy has 
vigorously pushed for approval of this legislation, arguing 
that it would give the GOG the necessary tools to conduct 
investigations of narcotics traffickers and other organized 
crime groups.  Without modern tools such as wiretap 
authority, racketeering charges, undercover operations, and 
controlled deliveries, the GOG has no realistic hope of 
dismantling organized crime groups.  We will work closely 
with the GOG to assist in targeting and prosecution of these 
groups. 
 
¶18.  (SBU) Despite changes to the bill, some political 
parties and NGOs remain unhappy with the bill and may 
challenge in court the constitutionality of some provisions, 
such as the conspiracy statute, wiretap authority, and 
undercover investigations. 
 
Derham