HONDURAN CRIMINAL PROCEDURE CODE: A SUCCESSFUL

UNCLAS SECTION 01 OF 02 TEGUCIGALPA 000611

SIPDIS

SENSITIVE

STATE FOR WHA/CEN, DRL/PHD, INL/C/CP, AND INL/LP
STATE PASS AID FOR LAC/CEN

E.O. 12958: N/A
TAGS: KJUS PHUM PGOV EAID KCRM SNAR PREL ASEC HO
SUBJECT: HONDURAN CRIMINAL PROCEDURE CODE: A SUCCESSFUL
FIRST YEAR, BUT CHALLENGES REMAIN

REF: 02 Tegucigalpa 3349 (NOTAL)


1. (U) SUMMARY: A year after the implementation of
Honduras' new Criminal Procedure Code (CPC),opinions
regarding its level of success are positive overall, but
critics remain. Supporters cite the commencement of oral
trials under the new system in 2002 as evidence of the
Code's success. Critics, however, contend that the changes
have not done enough to eliminate corruption in the judicial
system and that the new Code is already in need of reform.
The current independent Supreme Court, which represents
another separate milestone in Honduran judicial reform, has
strongly embraced the Code. Post is optimistic about the
potential long-term benefits of the new Criminal Procedure
Code. END SUMMARY.


2. (U) Until February 2002, the Honduran justice system
operated under a criminal procedure code that was still
based in part upon Spanish colonial law. It did not provide
for oral trials; cases were resolved based on written
submissions. The system was slow, subject to corruption,
and not transparent. In the mid-1990's, the United States
first began supporting efforts to create a new CPC. Since
1997, the U.S. has contributed approximately USD 12.5
million for judicial reform in Honduras, with a particular
focus on the CPC. On December 30, 1999, due in large part
to U.S. policy initiatives, the Honduran Congress approved a
new Criminal Procedure Code. The new code came into full
effect on February 20, 2002. It introduced wholesale change
into the criminal justice system, including oral trials, an
adversarial trial process, increased protections for
defendants, and overall changes intended to facilitate the
growth of a more transparent and effective system. The CPC
also introduced a strong prosecutorial function similar to
that of the United States, whereby the prosecutor has
significant discretion in terms of moving a case forward.


3. (U) According to the Honduran Interinstitutional Criminal
Justice Commission (CIJP),since the implementation of the
new Code, there have been 3,341 preliminary hearings, 3,989
initial hearings, and 1,184 pleadings. The majority of
trials have involved prosecution of crimes such as homicide,
rape, drug possession, and drug trafficking. Of the limited
cases processed thus far, approximately 6.6 percent have
resulted in convictions and 9.4 percent have resulted in
acquittals. Thirty-eight percent of cases have been resolved
through plea bargaining and 45 percent were dismissed due to
lack of evidence or technical reasons. In cases of drug
trafficking and financial fraud, there is a much higher
conviction rate (52 percent),with 28 percent of cases
resulting in acquittal and just 20 percent dismissed.
Resolved cases have been processed with far greater
efficiency under the CPC, in contrast to the former system
in which cases languished for years.


4. (U) Despite these advances, there are many challenges
that the judicial system has yet to overcome. Foremost
among these, according to the CIJP, is the attitude of
judicial officials. While the Code calls for impartial
public judgment, the often secretive attitude of the older,
written system sometimes prevails. Second, effective
investigation of crimes is an ongoing problem. Poor
coordination with police on investigations means few cases
requiring significant investigation are ever brought to
court. As listed above, 45 percent of all cases since the
inception of the CPC have been dismissed (not all because of
poor investigations, but many have been). Most prosecutions
are based on cases in which the accused is caught in the act
or which are resolved within 24 hours of the crime. Lack of
sufficient forensic medicine resources or lack of discretion
in using those resources, including a morgue that is still
housed in a tiny post-Hurricane Mitch "temporary" facility,
also contribute to a continually low case closure rate. A
third challenge facing the new Code lies in the opposition
to some of its policies, particularly those that allow the
release of suspects before trial. Advocates for the
revision of the new Code, including the Minister of Public
Security and other law enforcement officials, appear to be
gaining momentum.


5. (U) The Supreme Court also faces challenges in the
Congress and in the media. Perhaps due to its increased
status and greater independence, the Supreme Court came
under attack this year from the Congress. In August 2002,
in an apparent attempt to undermine the power of the
judiciary, the Congress approved a constitutional amendment
appropriating to itself the power to interpret the
Constitution. A legal challenge to this move is pending
with the Supreme Court (reftel) and the amendment must still
be ratified before it becomes law. As the judiciary
increases in strength and independence, similar attacks from
the legislative and executive powers should be expected. In
another highly publicized controversy, Vilma Morales,
President of the Supreme Court and a Nationalist Party
nominee, has been criticized for supposedly partisan
dismissal of Liberal judges.


6. (SBU) COMMENT: Post foresees many challenges ahead for
the CPC. It is clear that there must be constant vigilance
against corruption if the justice system is to effectively
utilize the new CPC to the benefit of the population.
Public confidence in the system is also vital if the CPC is
to be a success. Both the controversy over the partisan
dismissal of judges and legislative challenges to judicial
power, combined with reports of pervasive corruption, will
continue to undermine public confidence in the judicial
system and, by proxy, the new Code. However, Post is
pleased with the progress the courts have made in
implementing the CPC thus far. The Ambassador and all
elements of the mission have strong relations with the
Supreme Court and other judicial system actors. USAID
support for the CPC is ongoing, despite limited funds.
Because Honduras is a high-crime country, Post believes that
a more efficient criminal justice system that provides for
fair process is critical to efforts to increase citizen
security. If the CPC is successful in improving public
perceptions of justice and law enforcement, the CPC may also
play a role in the reduction of the high rate of
extrajudicial killings in Honduras. Moreover, since the
current security situation dissuades investors, a more
secure environment will lower the risk to investors and may
ultimately help to attract much-needed foreign capital. END
COMMENT.

PALMER