Honduras, where the “shield” against corruption has worked

CESPAD*

How are the corruption cases left by the MACCIH advancing before the Honduran courts? How much have the reforms to some laws approved by the deputies of the National Congress affected them? A brief and worrisome panorama shows that the “shielding” of corruption networks has worked in this Central American country.

To analyze the issue, the corruption case known as “Red de Diputados” becomes emblematic. In December 2017, the binomial formed by the Support Mission against Corruption and Impunity (MACCIH), and the Special Prosecutorial Unit against Impunity for Corruption (UFECIC, today called UFERCO), presented this case, initiating a criminal action against five deputies of the National Congress in collusion with three members of an NGO called the National Association of Producers and Industries of Neighborhoods and Colonies of Honduras (ANPIBCH), through which they illegally appropriated public funds that were intended for social projects.

However, and in an unexpected maneuver, the deputies of the National Congress prevented the progress of this investigation that would evidence the extension and inclusion of more congressmen in similar acts of corruption. Thus, the Congress approved a reform to the Organic Law of the Budget on January 20, 2018, in which it was established that “while an audit is being carried out, no judicial action shall proceed to claim any type of responsibility, whether administrative, civil or criminal of the official involved”. Since then, the Specialized Prosecutor Unit Against Corruption Networks (UFERCO) is prevented from taking legal action for administrative, civil or criminal acts against officials, deputies and NGOs, as long as the Superior Court of Accounts (TSC) does not perform and conclude the audit of these funds.

Legal reforms and shielding

The above is just one of several legal reforms that have been approved by the National Congress to shake off the direct investigation of UFERCO. The following are some of the laws that have undergone reforms, as part of the shielding that Honduran legislators implemented and that, according to experts in the matter, have formed the so-called “impunity pacts“:

  • New Criminal Code (Decree 130-2017) reducing penalties for crimes of misappropriation of public resources (Title XXVII: Crimes against public administration, in its Chapter I).

The minutes by means of which the crimes related to the protection of the Public Administration and its penalties (corruption crimes) were approved were submitted for “reconsideration”, with the purpose of “rectifying” them and, through this mechanism intended to correct typographical or formal errors, the penalties that had been discussed and decided by the plenary of the Congress were substantially reduced, violating the provisions of Art. 61 of the Organic Law of the legislative body, which does not allow the “rectification” of the minutes to change the substance of what has already been approved. Therefore, an illegal modification was promoted without even the deputy who proposed such “rectification” justifying the reason why the penalties should be reduced. Likewise, at the moment of submitting this reconsideration to vote, some deputies asked for the floor to say that this was not appropriate, but their voices were ignored and finally the reduction was approved irregularly.

In addition, the penalties assigned in the new Penal Code were reduced for the crimes of (a) embezzlement of public funds, (b) fraud and illegal exactions, (c) illicit enrichment, (d) negotiations incompatible with the exercise of public functions and abuse in the exercise of the function, (e) influence peddling, (f) abuse of authority and violation of the duties of public officials, and (g) administrative malfeasance. Now they have lesser penalties than they had in the 1983 Penal Code, despite the fact that corruption in Honduras has increased. Only the crime of bribery has a slight increase in the assigned penalty.

By way of example, in the crime of abuse of authority and violation of the duties of public officials, the prison sentence indicated in the previous regulation (from 3 to 6 years) is eliminated, to which was added the penalty of special disqualification for twice the time of imprisonment. In its place, it was replaced by the penalty of special disqualification for public office or employment.

In the crime of embezzlement of public funds, the reduction is drastic: the penalty is reduced by two thirds; and for the crime of fraud in subsidies or aid, the new rule exempts the perpetrator of the crime from criminal liability if he returns the values on which the offense was committed. In short: a clear message in favor of impunity.

  • Reform of the Organic Law of the Legislative Branch, through an addition to Article 10 (Legislative Decree No. 117-2019). This reform reestablishes, in practice, the parliamentary immunity, and shields the deputies for the actions they perform from their legislative function.

The measure protects parliamentarians from future requirements during their legislative functions, giving them the assurance that their conduct would have no consequences. The legislative “shielding” includes the processes of drafting, reading, discussion, approval, and signing of bills, rulings, decrees, as well as minutes and their respective reconsiderations.

  • Special Law for the Allocation, Execution, Liquidation and Accountability of Public Funds for Social and Community Projects and Social Programs (Legislative Decree No. 116-2019). With this law, immediate criminal action has been blocked against deputies, public officials, mayors, foundations and non-governmental organizations that have executed public funds allocated by the National Congress.

This hampers investigations for embezzlement of funds related to social welfare, i.e. aid provided by the state for the needy. Among other things, the law introduces new mechanisms that could delay the start of investigations by the Prosecutor’s Office by up to seven years.

  • Reforms to the Law of the Superior Court of Accounts (Legislative Decree no. 145-2019). These reforms avoid the criminal prosecution of public officials of the different state agencies, being replaced by the figures of “performance control” (financial control, control of performance and results, and performance audit) under the “protection” of internal auditors subordinated to the Superior Court of Accounts.

This is one more shield, since the law grants powers to an entity that does not have the capacity to investigate major corruption cases, limiting the prosecutor’s office.

All these reforms, far from facilitating the work of UFERCO before the courts of justice, hinder it. There is a clear delay in the processing of cases by the Judiciary, even in responding to the requests and appeals filed by the prosecutor’s office. In some cases the deadlines established by law have already expired, while others have gone almost two years without any response. The objective is to lengthen the processes and benefit certain defendants. Some cases have even been archived.

The delay in the administration of justice favors impunity, slows down the cases and encourages the activism of the private defense to use all possible legal tricks, arguing “that the courts do not have jurisdiction to hear the cases”, that “the TSC should be the authority that resolves”; filing appeals before the same court or “higher”; simulating false resignations of the defense at key moments, to generate that the court waits for new lawyers to appear (who are usually part of the same law firm). This fraudulent strategy implies an obvious delay: the court must wait for the court to send a notification to the parties, take copies of the entire file, allow time for the “new” defense counsel to get to know the process, etc.; as the report presented by Veeduría Social al Circuito on corruption has denounced.

National Congress denies information

Recently, UFERCO, in order to follow up on the lines of investigation it has underway before the country’s courts, requested information from the Secretary of the National Congress, Tomás Zambrano, regarding the activities of some of the legislators. However, Zambrano, under the protection of the reforms made to the General Budget Law, denied the information to the agents and prosecutors.

It is almost impossible to penetrate into the investigation of well-known figures and officials who, abusing their positions, embezzled public funds. UFERCO has these limitations to investigate the mismanagement of public resources, project funds, social aid and other resources.

“Only in Honduras are powers taken away from the Public Prosecutor’s Office. With the law reforms, now the Public Prosecutor’s Office must request documentation in writing and in a substantiated manner, when it has all the powers to investigate and seize documents. But here we have to ask them to hand over the evidence to investigate them,” said Gabriela Blen, executive director of the Organization Ayudamos a Honduras (OAM).

Another example of the obstacles faced by UFERCO is the investigation carried out by the Metropolitan Mayor’s Office of the Central District (AMDC), which refused to hand over information related to some councilmen. “They tell us that we must, first, state what we need the information for and, if it is pertinent, they can analyze if they give it or not”, affirmed one of the investigating agents.

Delay in cases

Pandora case

In June 2018, the UFECIC, with the support of the MACCIH, filed the Pandora Case accusing 38 implicated, including deputies, public officials and individuals, for the diversion of funds from the Secretariat of Agriculture and Livestock (SAG) that were intended for the implementation of social projects. The indictment includes six deputies and four former deputies of four political parties: National, Liberal, Democratic Unification (UD) and the Broad Front, as well as the former mayor of Yoro, the former Minister of Agriculture and Livestock, former Minister of Finance, political governors, Director of the National Agrarian Institute (INA), officials of the Presidential House, of the National Party Committee and aviation businessmen in Honduras, among others.

On October 12, 2020, UFERCO filed before the Constitutional Chamber a writ of amparo against a decision issued by the Court of Appeals, which ordered the termination of the case against 22 of the defendants, most of them deputies and former deputies. In this amparo, UFERCO argued that the Court had acted irregularly by modifying the procedure applicable to the oral trial, promoting impunity for corruption. The amparo included a request to provisionally suspend the effects of the sentence. According to the law, the Supreme Court of Justice was supposed to rule within 24 hours; however, more than three months have passed and a resolution has not been notified in this case.

Arca Abierta case

Arca Abierta is a case that documents the alleged diversion of more than 21 million lempiras through the Non-Governmental Organization (NGO) Planeta Verde. The case is linked to the Presidential House, the National Congress and the Ministry of Finance of the country. The deputies Milton Puerto, Gladys Aurora López, Welsy Vásquez, Gustavo Pérez and the former deputies Fabricio Puerto and José Alejandro Flores, as well as Geovanny Deras, Allan San Martín and Gregorio González were prosecuted for this case. Oscar Álvarez, Audelia Rodríguez, Juan Carlos Valenzuela, Carlos Bonilla and Hernán Vindel were released from criminal responsibility.

The case remained paralyzed for almost 11 months, since February 2019, when the UFECIC filed a writ of amparo. On January 09, 2021, the Constitutional Chamber admitted the appeal, which consists of a video and audio that were not admitted by Judge Reynaldo Hernandez as evidence in the initial hearing, considering that they were unlawful. Now the evidence was heard and seen by the judge, who then declared that the evidence was useless for the process.

Brother’s petty cash case

This was one of the last cases filed by UFECIC with the support of MACCIH, involving Ramón Lobo -brother of former President Porfirio Lobo Sosa- and Wilfredo Cerrato, former Minister of Finance. In this case, the Court of Appeals revoked the “auto de formal procesamiento” and ordered the definitive dismissal of the accusation for both defendants. UFECIC filed a writ of amparo on September 18, 2019, arguing that there was no correct reasoning and that due process was affected. Since then, the Constitutional Chamber has not ruled. A year has already passed without any resolution.

Case Caja Chica de la Dama

Seven months have passed since the Court of Appeals declared inadmissible the appeal filed by the judges of the First and Second Chambers of the Sentencing Court with National Jurisdiction in criminal matters. The Court must give way to the Oral and Public Trial, after the Criminal Chamber of the Supreme Court ratified the designation made by the Court of Appeals. But this action is still on hold.

It is not known if a date will be set for the repetition of the oral and public trial, and while time goes by, Rosa Elena Bonilla, former First Lady of Honduras, is serving eight months of waiting in freedom for the repetition of her trial and, along with her, her assistant Saúl Escobar.

Gualcarque Fraud Case

This case was initiated against 16 public officials who committed acts of corruption in order to fraudulently grant the concession of the Gualcarque River for the construction of the Agua Zarca Hydroelectric Project, for which the indigenous leader and environmentalist Berta Cáceres was murdered. On December 17, 2020, the Constitutional Court granted an injunction, releasing 10 of the 16 accused.

The beginning of the oral and public trial of this case was to be held on January 18, 2021. However, the Corruption Sentencing Court rescheduled it and it is now scheduled for March 8. It was alleged that the defense attorneys had planned a training outside the country and that is why the judicial process was delayed.

Impeachment of the Mayor of the Central District

On November 13, 2020, the Court of Appeals in Corruption matters favorably resolved the pre-trial process, allowing UFERCO to file a prosecutorial requirement against the current mayor of Tegucigalpa, Nasry Asfura. However, the filing of appeals for reconsideration, such as a writ of amparo against this decision, will delay the criminal action against the mayor and councilwoman Nilvia Castillo. The case continues to drag on and until the defense resources of the two accused are exhausted, it will be certain whether or not the formal accusation will proceed or not.

Impunity

All of the delays and obstructions in the judicial processes have left a trail of impunity. There is a notable abuse of resources to delay and obstruct judicial proceedings, using procedural powers (such as recusals, injunctions, etc.) that are improper. “Judges should use the tools available to them to prevent these acts from achieving their intended purpose (to prevent the process from moving forward),” states the Veeduría report cited above.

“The corrupt know that they are being prosecuted and they prepare themselves with all possible artillery to evade justice. They have everything, their body of lawyers who, coincidentally, are the same ones defending the networks that from the Power have set up a structure to drain the resources of the State”, says Ramón Barrios, former judge in criminal matters.

“There is no independence, there is no separation of powers. Everything comes from above and it is difficult to bring about a change. What we can do is to put pressure so that this institutionality is cornered”, he adds, by way of conclusion on the subject.

*This is a publication that is part of CESPAD’s project: “Veeduría ciudadana anti-corrupción y el legado de la MACCIH”, supported by Abogados Sin Frontera-Canadá (ASFC), however, the ideas expressed herein are the sole responsibility of CESPAD.

Photo: AP Images/Fernando Antonio

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