Legal Information and Assistance
Judicial Assistance in Guatemala
Disclaimer: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of foreign laws should be addressed to foreign counsel.
Proviso: The purpose of this flyer is to provide general information about procedures for service of process and obtaining evidence, including the taking of depositions of willing witnesses and the compulsion of testimony and documentary evidence. This is an informational flyer, not a legal opinion, and is not intended to take a position on any aspect of litigation.
Guatemala is a party to the Inter-American Convention on Letters Rogatory and Additional Protocol (Inter-American Service Convention) to which the United States is also a party. Judicial assistance is also governed by the Vienna Convention on Consular Relations to which the United States and Guatemala are parties. There are a variety of methods of effecting service of process. Procedures are not limited to those set out in the Inter-American Convention. Letters rogatory may also be used. Voluntary depositions can be taken on notice or pursuant to a commission and need not be taken on U.S. consular premises, although a U.S. consular seal is generally required in order for the proceeding to be admissible in the United States. In addition, a U.S. attorney should not take a deposition in Guatemala without the supervision of a local attorney. Compulsion of evidence can be obtained pursuant to a letter rogatory. There is no treaty in force on enforcement of judgments.
SERVICE OF PROCESS
Threshhold Question: Is Enforcement of a Judgment in the Foreign Country Foreseen at any Time in the Future? If so, it may be advisable to consult with local foreign counsel to ascertain how to proceed. In countries whose laws do not provide for other methods of service, letters rogatory may be the only method of service when enforcement of judgment is anticipated.
Applicability of International Treaty or Convention: Guatemala is a party to the Inter-American Convention on Letters Rogatory and Additional Protocol (Inter-American Service Convention), to which the United States is also a party. Pursuant to this Convention, requests for service of process are prepared on the form dictated by the Convention and transmitted via the U.S. Central Authority in the Department of Justice to the designated Guatemalan Central Authority, which is:
Corte Suprema de Justicia
21 Calle 7-70, Zona #1
Guatemala City, Guatemala
Tel: (011)(502) 232-0516
Contact: Secretaría Jurídica de la Presidencia
With respect to Guatemala, the Inter-American Service Convention only governs service of process in civil and commercial matters. Guatemala is not a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters.
Prohibition Against Service By U.S. Consular Officers: United States Foreign Service officers are prohibited by Federal regulation (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding.
Service by Mail: Non-compulsory service (not subpoenas) generally may be attempted by international registered mail, return receipt. But see Federal Trade Commission v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F. 2d 1300 (D.C. Cir. 1980). Registered mail, return receipt requested may be sent to most countries in the world. To ascertain whether such mail service exists in a foreign state, see the U.S. Postal Service Home Page at www.usps.com under the business section, or contact the nearest U.S. Postal Service Business Center to review the International Mail Manual. This manual may also be obtained from the U.S. Government Printing Office (GPO). The GPO Home Page can be found at www.gpoaccess.gov. Alternately, you may contact the Publications Section of the U.S. Government Printing Office, Washington, DC 20402, Tel. (202) 512-1800, Fax (202) 512-2250.
Service by Agent: For personal service, it is generally necessary to retain the services of a local attorney/notary in the foreign country who can either effect service, or arrange for some other person to effect service. The attorney (or his agent) can execute an affidavit of service before a local notary or at the American Embassy. Lists of Guatemalan attorneys are available from the U.S. Department of State, Office of American Citizens Services, and directly from the American Embassy in Guatemala. In Guatemala, it is also possible to arrange for certain judicial officials to effect service, although service by such officials can take much longer to accomplish than service by private attorneys. If a party anticipates the need to enforce a foreign judgment in Guatemala, the party should consult a Guatemalan attorney before attempting service by agent. See also the Martindale-Hubble Law Directory, Law Digest Volume at http://www.martindale.com/xp/Martindale/Products/products_intro.xml.
Service by Letter Rogatory: A letter rogatory, also known as a letter of request, is a request from a court in the United States to a court in a foreign country requesting international judicial assistance. Letters rogatory are often employed to obtain evidence abroad, but are also used in effecting service of process, particularly in those countries which prohibit other methods of service.
The Inter-American Service Convention provides an alternative to service by letter rogatory but allows for their continued use. Service of a letter rogatory may be requested by a court in the United States in the form of a formal request to the appropriate judicial authority of the foreign country pursuant to a letter rogatory. The letter rogatory is transmitted by the Department of State to the American Embassy. The American Embassy transmits the request to the Foreign Ministry which forwards the request to the Ministry of Justice. Eventually, the case is assigned to an appropriate court in the foreign country which will arrange for service of process. The procedure generally takes from six months to a year to accomplish. A general information flyer about preparation of letters rogatory is available from the Department of State, Office of American Citizen Services. See 28 U.S.C. 1696; 28 U.S.C. 1781(a)(2); Rule 4(i)(1)(B), Fed. R. Civ. P.; Rule 28(b), Fed.R.Civ.P.: Article5(j), Vienna Convention on Consular Relations, (21 UST 77, TIAS 6820, 596 UNTS 261); 22 CFR 92.54, 92.66.
Other Methods: Service by publication or execution of a waiver of service before a U.S. consular officer may also be used as substituted service. Consult local foreign counsel regarding the advisability of these methods of service.
Service of Subpoena: 28 U.S.C. 1783, 1784 and Rule 45 of the Federal Rules of Civil Procedure, 28 U.S.C. Appendix provide for service of a subpoena upon a national or resident of the United States in a foreign country. There are no provisions for service upon non-U.S. nationals or residents. Pursuant to 22 C.F.R. 92.86 - 92.89, when directed by the Department of State, officers of the Foreign Service will serve a subpoena issued by a court of the United States on a national or resident of the United States who is in a foreign country unless such action is prohibited by the law of the foreign country.
State criminal subpoena and orders to show cause may also be served by officers of the Foreign Service when directed by the Department of State, and when such action is not in violation of the law of the foreign country. In general, officers of the Foreign Service are not authorized to serve state and federal civil subpoena unless directed to do so by the Department of State.
Applicability of International Treaty or Convention: Guatemala is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
Authority: The taking of depositions of willing witnesses and compulsion of evidence from unwilling witnesses pursuant to a letter rogatory is governed by Article 5(f) (voluntary depositions) and 5(j) (letters rogatory) of the Vienna Convention on Consular Relations, to which the United States and Guatemala are Parties, and 22 U.S.C. 4215; 22 U.S.C. 4221; 18 U.S.C. App. Fed. R. Civ. P., Rules 15 and 17; 28 U.S.C. Fed. R. Civ. P., Rules 28-31; 22 CFR 92.55 - 92.66 (general authority of U.S. consular officers in judicial assistance matters).
Procedures: Guatemala permits the taking of voluntary depositions of U.S. citizens and permanent residents in Guatemala on notice or pursuant to a commission [28 U.S.C. App. Fed. R. Civ. P. Rule 28(b)(2)]. However, American attorneys would be well-advised not to participate in the taking of a deposition in Guatemala without the supervision of a Guatemalan attorney. Some Guatemalan legal experts believe that the taking of a deposition in Guatemala by a foreign attorney without the supervision of a Guatemalan attorney could possibly subject the American attorney to the criminal charge that he is engaging in the unauthorized practice of law in Guatemala. Involuntary depositions can only be taken pursuant to a letter rogatory. Contact the U.S. Embassy directly to make arrangements to schedule the availability of U.S. consular premises for the taking of a deposition.
Depositions for U.S. proceedings may also be taken in Guatemala outside of consular premises. However, you must contact the U.S. Embassy in advance if the deposition is to be taken outside consular premises to ensure the availability of a U.S. consular officer to administer oaths to the witness(es), stenographer, and/or interpreter at a location other than the U.S. Embassy. Depositions can also be taken on written interrogatories and cross interrogatories [28 U.S.C. Fed. R. Civ. P., Rule 31]. A general information flyer on obtaining evidence abroad, providing more detailed information about arranging depositions at U.S. embassies, is available from the Department of State, Office of American Citizen Services. Please note that consular fees may be charged for services provided by the Embassy in connection with the taking of depositions.
U.S. Federal, State or Local Government Participants: If a U.S. state or local government official is to participate in a deposition, such government official should contact the Office of American Citizens Services, Department of State, (202) 647-5118, fax (202) 647-2835 to initiate the process of obtaining the host country clearance.
Compulsion of Evidence: If the witness is not willing to be deposed voluntarily, and compulsion is required, it will be necessary to request the cooperation of the foreign judicial authorities pursuant to a letter rogatory. See Rule 28(b), Fed. R. Civ. P; 4 Moore’s Federal Practice 28.05-28.8 (2d ed. 1950); Ristau, International Judicial Assistance (Civil and Commercial), Vol. I, 3-36 et seq., International Law Institute, 1984; Article 5(j) of the Vienna Convention on Consular Relations . The questions will be put to the witness by a foreign judge in a foreign court. It is not generally possible for an American attorney to participate in the proceedings, although this can be requested in the letter rogatory. Participation of local foreign counsel may also be requested, as an alternative. With the permission of the court, an American attorney may observe Guatemalan court proceedings. A general information flyer on the preparation of letters rogatory is available from the Department of State, Office of American Citizen Services.
Authentication and Translation Requirements: Guatemala is not a party to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Letters rogatory must be authenticated by the Guatemalan embassy or consulate in the United States using the chain authentication procedure. If the local Guatemalan consulate is able to authenticate the seal of the American court on the letter rogatory, no further authentication may be required. If not, see the general informational flyer on letters rogatory for details about how to have the documents authenticated, using the chain of certifications procedure. All documents must be translated into Spanish by a Guatemalan Sworn Legal Translator.
Compulsion of Documents and Physical Evidence: As in the taking of depositions, United States consular officials have no authority to compel the production of any document or other article. However, production of documents and other physical evidence may be compelled through the foreign courts by letters rogatory.
Questions: If you have further questions, contact the Office of American Citizen Services, Room 4811 N.S., Department of State, 2201 C Street N.W., Washington, DC 20520-4818. The telephone number is (202) 647-5118.
U.S. Embassy Assistance: To contact the American Embassy directly regarding the scheduling of a deposition, contact:
American Citizens Services Section, Consular Section
7-01 Avenida la Reforma, Zone 10
Guatemala City, Guatemala
The telephone number from the United States is (011)(502)2326-4405; the fax number is (011)(502)2331-0564. Should you wish to write to the Embassy from the United States, we recommend that you use the following address:
American Citizen Services Section, Consular Section, Unit 3308
APO AA 34024