Teodoro Bonilla is the Vice President of the Judicial Counsel, the group which oversees the performance of Judges in Honduras. He is accused of getting two different judges to change guilty rulings against two of his relatives for money laundering and having illegal weapons among other charges.
Yesterday in court, the Public Prosecutor's office made a motion for Justice Victor Manual Lozano Urbina to recuse himself from hearing the case because of his manifest friendship with the accused, Bonilla. They introduced as supporting evidence of that friendship a recording of a phone call, from a tapped telephone, between Justice Lozano and Bonilla.
Justice Lozano, in all fairness, had attempted to recuse himself from the case precisely because of his friendship with Bonilla at the beginning of October, but the Justices of the Supreme Court denied his motion to recuse himself and ordered him to hear the case.
The Defense argued:
"They have a phone intercept on the communications of Justice Victor Manuel Lozano. We assume that they have intercepts on the telephones of all of the Justices of the Supreme Court, for which the defense alleges that this is an illegal piece of evidence that violates the Constitution of the Republic, treaties and human rights agreements of which Honduras is a part."
Never-the-less the defense argued that Justice Lozano should hear the case.
We have to remember that it was the defendant's lawyer who concluded that it was Justice Lozano's phone, and not Bonilla's phone that was tapped. Other statements, including by another defense lawyer, suggest it was Bonilla's phone that was tapped. Furthermore, they argue that the date of the phone call is from prior to the opening of an investigation of Bonilla and therefore was illegally obtained and used.
Honduran law is clear on the collection and use of wiretaps. To legally listen in on phone calls in Honduras requires an active investigation against the person by the Public Prosecutor's office, and a judge's signed order authorizing the wiretap.
To get a wiretap warrant, the Prosecutor's Office must present to the Judge in writing, the full name of the person(s) whose communications are to be tapped, a description of the illegal activities that warrant the wiretap, the legal code being violated, what communications are to be intercepted (eg, phone carries, IMEI number of phone, etc), the duration of the tap, the name and title of the person requesting the wiretap, and most importantly, the number of the open investigation. Wiretaps are related to a particular investigation and may not be used in another case.
To use wiretap information in a legal case in Honduras, the Public Prosecutor must request judicial approval to use the wiretap data. It does not appear that the Public Prosecutor did so in this case. Instead he introduced wiretap information in a pre-trial motion.
The law says a wiretap may not be used in any other case other than the specific investigation that made it necessary. This becomes relevant because the defense has argued that it dates from before the investigation of Bonilla began and therefore is not legally admissible.
Bonilla's lawyer has requested the judicial order authorizing the phone tap on Bonilla in order to make it public.
Justice Lozano admitted the prosecutor's motion to recuse himself and denied the motion by the defense to remain on the case. The motion to recuse now goes to the named appeals court, consisting of 3 other Supreme Court Justices: Silvia Santos, German Garcia, and Elmer Lizardo.