June 28, 2023 by Redacción
Written by: Rubén Escobar
After a few years in force, the “impunity pacts” have allowed many people accused of crimes such as money laundering, front men for drug traffickers, and corrupt people to go free, and have their assets returned to them. For this reason, the repeal of these decrees continues to be a topic of debate in Honduras because if it is not done, the fight against corruption will be an unfeasible task.
So far, despite the fact that the damage caused by the impunity pacts is irreversible, the actions of the National Congress and the Executive Branch to abolish them have been insufficient. The need to confront corruption with integrity is reflected in the Corruption Perceptions Index, a measurement carried out every year by the organization Transparency International. The measurement states that zero is the most corrupt and 100 is the least corrupt.
In its latest version, corresponding to the year 2022 but published in January 2023, it is noted that Honduras is among “the ten countries that have registered a significant decline in CPI scores” since 2017.
The perception of corruption worsened in the last years of Juan Orlando Hernández’s government. Honduras went from 29th position in 2014 (the first year of Hernández’s government) to 23rd in 2021 (the second term of government). In 2022, it remained in the same position, a figure that could be interpreted as zero progress, in the fight against a problem that affects millions of Hondurans and benefits a few.
Decrees that generate prosperity for the mafias
The decrees that are called “impunity pacts” aim to prevent crimes committed by public officials from being investigated, prosecuted, and punished, but also by corrupt elites, owners of capital obtained, many times, through criminal practices such as rigged contracts with the government, overvaluation of products and services, and money laundering.
Lawyers Osiris Payes and Kenia Oliva were speakers on the subject at the forum held by the Center for the Study of Democracy (CESPAD), called “Maintaining the pacts of impunity is maintaining the narco-dictatorship.” Both legal professionals and standard-bearers in the fight against corruption and in favor of respect for human rights analyzed the decrees that were approved by the Hernández government and that currently block the criminal prosecution of corrupt people.
They pointed out that the first blow against the institutions and in favor of the corrupt was dealt when Decree 9-99 was approved, which contains the Code of Criminal Procedure. This decree entered into force in May 2000 and stipulates that, in order to try high-ranking officials (secretaries and undersecretaries of State, directors and deputy directors of state agencies, among others), the Supreme Court of Justice must appoint special or “ad hoc” judges. In practice, this decree created a context conducive to selective justice: for people with political power and for ordinary citizens.
For Oliva, founder of the Justice for the Peoples Law Firm, this type of legislation is “unconstitutional” because the Magna Carta states that “we are all equal before the law, that there are no privileged classes and that we must all be judged by a judge of guarantee.”
It emphasizes that the Legislative Branch does not represent the citizens, but the interests of their political parties. He exemplifies what he says with the approval of this decree that shows a lack of coherence and a clear conflict of interest because the magistrates appoint the judge of the officials wanted for corruption, but, at the same time, the magistrates were appointed by the deputies of the National Congress. This amalgam of interests means that judicial decisions, in most cases, are conditioned by political games and interests that tend to favor the corrupt.
Consistent with Oliva’s remark, Payes points out that it is “questionable if I, as a magistrate of the Supreme Court of Justice, am elected by a power that is the National Congress, what discretion or independence am I going to have to judge the people who elected me?”
Laws that reduce penalties and free the corrupt from responsibility
During the Hernández government, a new Penal Code was approved, through Decree 130-2017, which came into force in June 2020. With this regulation, the penalties for crimes such as embezzlement of public funds, abuse of authority, influence peddling, fraud and illicit enrichment were reduced.
The creation of this “crime superstructure” also included the approval of the “Special Law for the Management, Allocation, Execution, Liquidation and Accountability of Public Funds,” contained in Decree 116-2019. This law freezes the powers of the Public Prosecutor’s Office to investigate the diversion of state resources by deputies, civil servants, NGOs and individuals. The Superior Court of Auditors (TSC) is also assigned the task of auditing the management of the funds within three years. In addition, it allows the person under investigation to reimburse the missing funds and thus exempts him or her from criminal liability.
In practice, this decree has served to prevent those accused of corruption from even “visiting a court” because judge’s order the archiving of cases automatically.
On the other hand, in Honduras, Decree 117-2019 remains in force, which exempts deputies from civil, criminal, and administrative liability for their work in Congress, that is, in practice it provides them with immunity. Payes emphasized that this provision contravenes the Constitution because it states in Article 321 that “State servants have no powers other than those expressly conferred on them by law. Any act they perform outside the law is null and void and implies responsibility.” Meanwhile, Article 323 warns that “officials are depositories of authority, legally responsible for their official conduct, subject to the law and never superior to it.” The Law on State Procurement also instructs that the public officials must be careful in the administration of public funds.
On the other hand, Decree 57-2020 was formulated to hinder the work of the Public Prosecutor’s Office, specifically in the seizure and seizure of public documents. Through this decree, Congress interprets Articles 217, 219, and 220 of the Code of Criminal Procedure, so that to access documentation in a unit, a formal request must be made and the reason for the request must be justified to the official. The alternative is to ask for the permission of a judge, with the consequent loss of time, leakage of information and the possibility that the magistrate will not accept the request.
The corruption networks, entrenched in the National Congress, launched this project after the Special Prosecutor’s Unit against Impunity for Corruption (UFECIC) seized documents from the Presidential House on June 24, 2019, to support investigations that implicated former President Hernández and his family circle. One of the cases in which this mechanism was used to block justice was in an investigation against the then mayor of Tegucigalpa, Nasri Asfura.
A special decree for launderers, corrupt and violators of human rights
Special mention should be made of Decree 93-2021, which amends or repeals more than a dozen articles of the Penal and Procedural Codes, as well as the Money Laundering Law. One of the most important reforms was that of article 439 of the Penal Code because it mandates that a previous crime be proven to establish the criminal classification of money laundering. Prior to this decree, it was stipulated that those who received resources from a score of crimes could be charged with money laundering and at the end it added that people whose assets did not have “economic or lawful cause or justification of their origin” were also imputable.
The deputies removed that last part of the article and removed environmental crimes from the list. Prosecutors are now required to prove that the resources come specifically from those twenty or so crimes.
According to estimates by lawyer Luis Javier Santos, head of UFERCO, this reform has allowed some 400 front men, money launderers of cartels such as Los Valle-Valle, Los Cachiros and major corrupt people, to go free and have their assets returned to them.
It also modifies the Special Law Against Money Laundering to take away from the Public Prosecutor’s Office the power to access financial records operated by money launderers in the banking system, and orders the request to be made to a judge, with the possibility of leakage of information and the postponement of the process.
Decree 93-2021 also reforms the Procedural Code and the Penal Code regarding the crime of usurpation, thereby increasing penalties, giving powers to the Public Prosecutor’s Office and the National Police to execute evictions without authorization from a judge. In addition, it criminalizes family groups that have owned land for several generations but do not have land titles.
Oliva, who was part of the legal team that represented the environmental defenders in the historic Guapinol trial, says that this decree violates the human rights of ancestral communities that are threatened by business groups that do receive titles issued by mayors and the Property Institute (IP).
He said that this mechanism of dispossession is used to keep peasants imprisoned and favor businessmen who hold property titles, because the judges “are not interested in how that businessman obtained the deed. So, you go and tell him, that deed is illegal because it doesn’t have a successive tract, because it doesn’t have measurements and such, but no, the judge doesn’t care, she only cares that there is an IP title, which is another of the institutions that has lent itself to persecute territorial struggles.”
In line with previous reforms, the same decree repeals Article 153 of the Penal Code, which established “the responsibility of chiefs and other superiors”. That is, a military or police chief could be indicted if his subordinates’ committed crimes while performing functions under his command, because, in situations with some degree of conflict, such as in an eviction, the police and military can commit abuses and even fire their weapons unnecessarily.
In such cases, the head of the operation had previously been prosecuted since, as a representative of the State, he was liable for action or omission, particularly when it could not be determined precisely who was the perpetrator of the commission of a crime. But Decree 93-2021 guarantees that all kinds of abuses can be committed without criminal liability on the part of the actors.
A double shielding mechanism
During the forum, lawyer Payes explained that by creating all this legal scaffolding, a double protection was generated for the corrupt. In the first place, because by promoting a new Penal Code and the subsequent reforms, the doctrine that allowed substantial reductions in crimes was modified. Second, changes were made that reduced the operational capacity of the Public Prosecutor’s Office, preventing it from acting against criminal structures.
It is clear that “impunity pacts have been established to protect corrupt elites and hinder accountability,” said Payes, who is an advisor on “Transparency and Anti-Corruption” at CESPAD.
He explained that the repeal of some decrees such as 93-2021, 57-2020, and 116-2019 is currently for discussion in the third debate, but inexplicably they have not been presented to the plenary of the National Congress for the final vote. Other decrees have not even been issued.
“We have been in office for 15 months under the new Congress and the current government. There has been progress, but it is not enough. What are the real obstacles that prevent a correlation of forces favorable to its repeal?” he asked.
In this regard, Payes considered it necessary to install an international anti-corruption mechanism, due to the loss of confidence in national institutions. “The lack of independence, transparency, and efficiency in the national justice system makes it difficult to prosecute the corrupt. Political influence and impunity pacts hinder accountability. An independent international mechanism can provide an impartial and effective framework for investigating and prosecuting cases of corruption, without political interference or undue influence,” he said.
In addition, the goal of the International Commission Against Corruption and Impunity in Honduras would be to strengthen the institutional framework of anti-corruption organizations. But “if the narco-dictatorship is not dismantled, if these corruption pacts are not dismantled, it is impossible for an international mechanism to come.”
For his part, Oliva questioned that with “all those reforms that served to create the impunity pacts, the damage has already been done, it is irreversible because the people who were accused of these crimes are acquitted. It is res judicata, even if it is malicious res judicata, as the Inter-American Court of Human Rights says.”
However, he left on the table the issue of reversing reforms to the Law of the Superior Court of Auditors, the Organic Law of the National Congress, and other regulations to advance in the fight against corruption.
He said: “One of the things we should invite this new Congress, this new government, to do is to repeal (the impunity pacts). They must be repealed, it is urgent.”