CAFTA LABOR/ENVIRONMENT QUESTIONS: INFORMATION

UNCLAS SECTION 01 OF 02 TEGUCIGALPA 002459

SIPDIS

STATE FOR WHA/CEN, DRL/IL, AND EB/TPP
STATE PASS USTR FOR AUSTR VARGO
STATE PASS AID FOR LAC/CEN
DOL FOR ILAB

E.O. 12958: N/A
TAGS: ELAB SENV ETRD EAID PREL HO
SUBJECT: CAFTA LABOR/ENVIRONMENT QUESTIONS: INFORMATION
FROM HONDURAS

REF: State 283733


1. Below are Post's responses to the questions raised in
paragraphs 5-6 of reftel.

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Labor Laws
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2. The Ministry of Labor can levy fines against companies
that violate the country's labor laws. These fines can
range from 20 to 10,000 Lempiras (USD 1.14 to USD 570) per
violation, depending on the seriousness of the violation.
Articles 359, 469, 500, and 625 of the Labor Code (reformed
by decree 978 on July 14, 1980) govern sanctions and fines
for labor issues. Along with a fine, the Ministry can
impose corrective measures that must be undertaken by a
company. The ministry can also suspend labor union board
members or suspend a union's registration for violations.
Serious labor violations (such as threats or violence
against union organizers) could be classified as crimes and
could result in criminal proceedings and a jail sentence.


3. The Ministry of Labor can reach administrative decisions
on allegations of unfair dismissal and fine companies but
only a court can order reinstatement of workers. (Note:
There is no quasi-judicial system in Honduras. End Note.)

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Environmental Laws
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4. The Ministry of Natural Resources and Environment can
levy fines against parties which violate the country's
environmental laws. These fines can range from 1,000 to
1,000,000 Lempiras (USD 57 to USD 57,000),depending on the
seriousness of the violation. The Ministry can also suspend
or cancel the environmental permits issued by the Ministry
which are required for many kinds of businesses to operate.
Again, the length of the suspension depends upon the
seriousness of the violation.


5. Most violations of environmental law are considered
misdemeanors. Extremely serious cases, however, could be
classified as crimes and result in criminal proceedings and,
theoretically, a jail sentence. The Ministerio Publico
(Prosecutor General's Office) does have an office
specifically responsible for environmental crimes, and has
brought criminal charges in cases involving burning of
forests and deliberate destruction of the coral reef off the
north coast. To post's knowledge, however, no one in
Honduras has ever been sent to jail for violation of
environmental laws.


6. Under the Honduran legal system, an "acta", in and of
itself, is nothing more than a legal declaration or finding.
It is not, by itself, analogous to the U.S. concept of a
compliance agreement. The law does, however, make provision
for an "acta de acuerdo" or "acta de compromiso" which would
be roughly similar to a U.S. compliance agreement: an
agreement by which the offending company agrees to come into
compliance with the law. (Even under an "acta de acuerdo",
the company is required to pay a fine.)


7. While provision for an "acta de acuerdo" exists in the
law, it is apparently very uncommon in practice: a legal
contact who worked for the Ministry of Natural Resources and
Environment until very recently knows of not a single case
in which an "acta de acuerdo" was established. Instead,
companies seem to prefer to deny the allegations entirely
and, if unsuccessful in doing so, pay the required fine and
submit to corrective measures ("medidas de mitigacion y
correcion del dano") imposed by the Ministry, which must be
undertaken before the Ministry will re-issue the company's
environmental permit.

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Amparo
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8. In Honduras an "amparo" (Article 183 of the Constitution)
can only be filed against a governmental entity, not against
a private company. Also, for environmental issues, an
"amparo" can only be brought once the Ministry of Natural
Resources and Environment has twice found an environmental
complaint to be without basis.


9. For example, if an environmental NGO believes that a
certain company is violating the nation's environmental
laws, the NGO must first file a complaint with the Ministry
of Natural Resources and Environment, presenting evidence of
their complaints against the company. The Ministry will
then undertake an investigation to determine if the
complaint is valid. If the Ministry rejects the complaint,
the NGO may then file a "recurso de revision" or "recurso de
reposicion", to request that the Ministry re-evaluate the
case. If the Ministry again rejects the complaint, then and
only then may the NGO bring an "amparo" against the Ministry
(not against the company) to claim that its constitutional
rights are being violated. The "amparo" is brought directly
to the Supreme Court.

Palmer