Guatemala Adopts New Regulatory Framework for Pretrial Detention
Mario Archila and Mónica Medrano from ARIAS Guatemala, litigation experts, present this article on the enactment of Decree 23-2026 by the Congress of the Republic of Guatemala, which contains amendments to Decree 51-92, the "Code of Criminal Procedure,” regarding the application of pretrial detention in the country.
Pretrial detention is a coercive measure that restricts the accused’s freedom and consists of their incarceration while they are undergoing criminal proceedings for the alleged commission of a criminal offense.
The accused is presumed innocent, and in the adjudication of criminal cases, the rights to a defense and due process must be observed. Accordingly, pretrial detention should be applied only in exceptional cases, provided that it is proportionate and consistent with the danger it is intended to prevent.
The purpose of the amendments to the Code of Criminal Procedure contained in Decree 23-2026 of the Congress of the Republic of Guatemala is to avoid depriving a person of their liberty in the absence of a conviction, by using pretrial detention only in exceptional cases.
Some key provisions of Decree 23-2026 of the Congress of the Republic of Guatemala are as follows:
Article 258 of the Code of Criminal Procedure is amended to require the authority that ordered the suspect’s arrest to hold the initial hearing within a maximum of 24 hours from the time of arrest. Thus, the accused cannot be sent to a detention facility if the hearing has not taken place. This measure is intended to prevent individuals who have not been formally charged from remaining in pretrial detention without a court order.
Article 259 of the Code of Criminal Procedure was amended to limit the provisional detention of a suspect in a correctional facility until he or she has made an initial statement, making the order for pretrial detention contingent upon the justified existence of procedural risks of flight and obstruction of the investigation.
Article 261 BIS is added, pursuant to which the Public Prosecutor’s Office is responsible for providing sufficient evidence to demonstrate the existence of procedural risks that justify pretrial detention, and the defendant is permitted to present evidence to challenge the prosecutor’s request; the judge must rule solely on the basis of the procedural risks of flight and obstruction of the investigation into the truth.
The reforms also establish the Unit for the Oversight of Coercive Measures, under the Supreme Court of Justice, which shall assist the courts in monitoring and ensuring compliance with coercive measures other than pretrial detention and shall centralize and manage up-to-date information on individuals who are detained or in pretrial detention. This Unit must monitor alerts regarding the duration of pretrial detention or the serving of sentences in correctional facilities.
Article 264, concerning alternative measures, is amended to include a list of measures that the judge may impose on his or her own initiative, and the possibility of "electronic monitoring” is included; in such cases, the defendant may present evidence regarding his or her financial capacity, and the judge may exempt him or her from paying for such monitoring.
The amendment introduces Article 264-Quater, which prohibits the granting of alternative measures to recurring offenders or habitual offenders, as well as in cases involving major crimes.
In addition, reforms are being introduced to regulate the duration of pretrial detention during the preliminary proceedings.
In summary, the reforms to the Code of Criminal Procedure enacted by Decree 23-2026 of the Congress of the Republic of Guatemala establish a new regulatory framework regarding pretrial detention with the aim of preventing overcrowding in prisons by limiting the use of pretrial detention to exceptional cases.