Decree of the International Commission of Jurists on the Occasion of Completing their visit to Honduras
Between the days of the 6 and 10th of December of 2010, the International Commission of Jurists (CIJ) carried out a high level mission to Honduras, with the goal of observing the situation of judicial independence. The delegation of the CIJ held meetings with organizations of civil society, human rights defenders, community leaders, social leaders, government authorities of the highest level, representatives of the International Community, intergovernmental organizations, representatives of the legislative organization and other actors related to the right of access to justice and the independence of the Judicial Power. The visit was framed within the efforts that the CIJ carries out in different countries to accompany the process of democratization of justice and the respect for judicial independence.
The High Level mission of the CIJ was framed in the effort that this commission has been making since 2003, with the goal of watching over judicial independence. On that occasion, the CIJ published the report, "The Administration of Justice, the Independence of the Judicial Power and the Legal Profession in Honduras" by means of which recommendations were presented to Honduras to fortify judicial independence. In the same way, in 2008 the CIJ carried out three missions with the goal of observing the process of election of magistrates of the Supreme Court of Justice. As part of this process, the CIJ will carry out an International Seminar on Judicial Independence in Honduras in February 2011 and a second High Level Mission in March 2011, to conclude with a Report on Judicial Independence in Honduras after that mission.
The delegation was made up of José Antonio Martín Pallín, Magistrate of the Spanish Supreme Tribunal; Philippe Texier, ex-Magistrate of the Court of Cassation of France [the highest court of appeal in France] and an expert of the Committee of Economic, Social and Cultural Rights of the UN; Belisario Dos Santos Jr., ex-Minister of Justice of the State of Sao Paulo, Brazil and an expert jurist in human rights; and Ramón Cadena, Director of the Office of the CIJ for Central America.
The CIJ is an international NGO founded in Berlin in 1952. Composed of seventy jurists who represent the different legal systems of the world, the CIJ dedicates efforts to guaranteeing the primacy, the coherence and the putting into practice of International Law, as well as the principles that promote human rights. The international secretariat, with its seat in Geneva, carries out the intentions and objectives of the CIJ and, for that work, counts on a network of autonomous national sections and of affiliated organizations in all the continents. Its activities in Central America are developed through its office in Guatemala.
The CIJ takes advantage of this opportunity to extend its gratitude to all its interlocutors for their willingness to engage in dialogue.
After analyzing the existing information as well as the content of the interviews carried out, the CIJ presents the following considerations, conclusions, and general recommendations:
1. In the report "La Administración de Justicia, la Independencia del Poder Judicial y la Profesión Legal en Honduras" of 2003, the CIJ pointed out that "while there have been positive normative changes, all those can be seen to be affected by the political partisanship that permeates a high number of actors of the public powers. A clear example of this partisanship could be observed in the election of Magistrates of the Supreme Court. While the procedure for selection foresaw the participation of diverse sectors of civil society and the political world, the election of these magistrates had as a result a Court divided along lines of political affiliations, with a majority clearly identified with officialdom and a minority in opposition." In that report it added that the Judicial System of Honduras "is permeated by an extreme partisan politicization, which negatively impacts not only on its administrative decisions, but also on the judicial decisions of different organs of the Judicial Power. The latter aspect is extremely worrisome, since it brings with it a lack of confidence in the system on the part of the judged and the general population." Unfortunately, on this occasion the CIJ has confirmed that despite the efforts realized by NGOs and the international community, the advances are few and the majority of recommendations have not been followed.
2. We can affirm that before the rupture of constitutional order of the 28th of June of 2009 judicial independence in Honduras was fragile. The coup d'etat came to aggravate the situation, facilitated the commission of grave violations of human rights, permitted a greater impunity, and measures were taken that affected judicial independence even more.
3. For example, the unjustified dismissal of the three justices Ramón Barrios, Luis Chévez, and Guillermo López and the magistrate Tirsa Flores, was an attempt against liberty of expression, the right of association and reunion and the defense of democracy. The CIJ knows that Article 319 of the Constitution of Honduras in which it is established that judicial functionaries cannot participate in partisan activities. Nonetheless, the charges that have been imputed against them, all of them carried out during or in the days following the rupture of constitutional order, are unacceptable. The CIJ considers that the justices in a Democratic State have the duty on the assumption of a constitutional compromise to defend Democracy and the State of Law, an obligation and duty that in no case can be considered as partisan activity.
4. According to the Declaration and Plan of Action of the CIJ about the Function of Judges and Lawyers in Times of Crisis (Principle #5): "The stability and continuity of the judicial power are essential in times of crisis. Judges should not be subject to arbitrary removal, individually or collectively, on the part of the executive, legislative, or judicial power. Judges should only be removed through an equitable procedure and for bad conduct incompatible with the judicial role, crimes or incapacity that would disqualify them to exercise their functions. The right of association of judges and lawyers, including the right to create or to affiliate themselves with professional associations, should be respected at all times." This principle has not been complied with in the case of the justices mentioned.
5. The assassination of 9 journalists whose cases have not been clarified, as well as other extrajudicial executions; and the existence of social activists, union members and defenders of human rights detained illegally, demonstrate that the grave situation of human rights in the country deteriorated even further with the rupture of constitutional order. The imposition of a state of emergency that permitted the irrational use of force, the disproportionality in the actions of the functionaries charged with law enforcement and the absence of recourse for the victims such as the write of habeas corpus, are examples of the damages caused during the actions carried out during the rupture of constitutional order to control the resistance of persons or groups that defended Honduran democracy. The CIJ also wishes to recall the jurisprudence of the International Court of Human Rights concerning the validity of habeas corpus during states of emergency.
6. The CIJ emphasizes that the restoration of constitutional order is not materialized solely by the convening and carrying out of general elections. Each State that affects constitutional order has the duty to take other measures to return to democratic normality such as: restore the independence of the judicial power, the full force of human rights, the repair of damages caused by the grave violations of human rights committed during the action of rupture of constitutional order, to establish the truth of what happened and to restore the right of every citizen to have access to an independent and impartial justice and any other means that is in line with the strengthening of the State of Law and the full force of Democracy. The return to democratic legality demands clarifying the responsibility of the authors, without prejudice to other means necessary for reconciliation as an element of co-existence; as well, according to international doctrine it is impossible to legitimate a coup d'etat with de facto measures or by developing apparently constitutional theses about the de fact doctrine that contradict the same principles of democracy and the International Law of Human Rights.
7. With profound preoccupation, the CIJ has confirmed that there are few results that have been achieved for the restitution of constitutional order. In regard to the search for the truth, the existence of two truth commissions indicates that Honduran society continues divided; the fact of having two truth commissions could have a negative effect on the victims. Although the Comision de Verdad enjoys the confidence of the victims, it lacks the financial support of the international community. On the other hand, it is evident that the Comision de la Verdad counts on economic resources and greater access to governmental information, but it has little recognition or confidence of the victims. The CIJ considers that the search for the truth should be accompanied by other measures for the restitution of constitutional order. The resolutions of both commissions should be taken into account by the State and both commissions should count on the cooperation of the institutions of the State (access to information) and the financial and political support of the international community.
8. On the other hand, the impunity of the femicides, extrajudicial executions, tortures and other crimes against humanity remains and although the Chief of the Ministerio Publico expresses his interest in resolving those cases, still no results are seen. The information received related to common crimes committed by the military during and after the rupture of constitutional order that are being judged by military tribunals preoccupies the CIJ. The international community has expressed the necessity that it should be ordinary courts that hear these facts and judge their authors. The CIJ reminds the System of Justice of Honduras and the State as a whole that the judgment of military and of police by military or police tribunals for grave violations of human rights or for common crimes is one of the most frequent factors in impunity. In respect to the Supreme Court of Justice, the CIJ was able to interview one of the five magistrates that voted against the decision to dismiss the judges already mentioned; nonetheless, despite efforts realized to obtain a meeting with the President of the Supreme Court of Justice, this was impossible.
9. The National Commission for Human Rights supported the rupture of constitutional order. Being absent from its obligation to protect persons in situations of emergency, took away credibility from the institution; this situation produces a sensation of abandonment in the Honduran population and a lack of confidence in the system of national justice. Finally, in the case of the judges dismissed, the CIJ urges the State of Honduras to resolve this case with the immediate reinstallation of the justices in their positions.
10. The State of Honduras should make all efforts in its reach to investigate the cases of femicides, assassinations of lawyers, threats against operators of justice, assassinations of journalists, actions against defenders (men and women) of human rights and extrajudicial executions and determine via a rapid, effective, and objective investigation who are the responsible parties. Likewise, it should create a mechanism for the fulfillment of the recommendations of the Periodic Universal Exam of the Council of Human Rights of the UN. The CIJ received information from the government authorities in this regard, which is a positive step.
11. The CIJ considers that the State of Honduras should take into consideration the position adopted by the Iberoamerican Summit celebrated in Mar de Plata, Argentina in which there has been agreed a "democracy clause" according to which the rupture of constitutional order will produce the suspension from the summits of the States involved, until the constitutional order should be re-established. In the same sense UNASUR in Guyana previously declared contemplating economic sanctions and the closing of frontiers with the country affected by a coup d'etat. In the face of these resolutions, the State of Honduras should give signals that demonstrate its obligation to restore constitutional order.
12. The CIJ reminds the State of Honduras that it is part of the Statute of Rome that created the International Court and the Interamerican Convention on Human Rights; as well, that it accepted as Party State of the said convention the expertise of the Interamerican Commission and the Interamerican Court of Human Rights. In the face of the situation of impunity that exists in the country, the CIJ has found that the victims of these grave violations have been obliged to resort to international jurisprudence, which could affect even more the credibility of the policy institutions of the State of Honduras; in this context of impunity, the CIJ considers necessary the installation of an International Commission against Impunity and an office of the High Commission of the UN for Human Rights with a mandate to observe the situation of respect for human rights in Honduras.
13. The CIJ has found that there exists a determination among the organizations and persons interviewed to achieve the restitution of constitutional order, the independence of justices, magistrates, and judicial officers and access to justice. Nevertheless, there still remains a long way to go and it is necessary that the institutions of the State give concrete evidence of political will to make the required structural changes. The naming of the Secretary of State of Human Rights is a good signal, but it should be accompanied by the assignment of a budget for this officer.
14. Without prejudice to all the preceding, the CIJ recognizes that in conversations with the President of the National Congress and with deputies of the said congress, it was informed of legislative initiatives that could in the future introduce some positive changes in respect to the present situation. For example, the Constitutional Reform scheduled for January of the coming year, with the goal of removing and separating the administrative functions of the Supreme Court of Justice to entrust them in a Judiciary Council, as well as the approval of a law for the regulation of this council. Nonetheless, the CIJ wishes to call attention to the so-called "Law against the Financing of Terrorism" because although it has positive aspects that could assist in the fight against organized crime and drug-trafficking, it will create legal uncertainty for NGOs. The CIJ will deepen the study of this law with the goal of transmitting to the Executive Body, to the National Congress, and to civil society its observations.
15. Finally, equally a motive of extreme worry for the CIJ is the information received about the possible influence and private interests of illegal groups, clandestine security forces, organized crime and drug trafficking in specific regions of the country, which act with total impunity.
The CIJ considers that all the aforementioned acquires greater relevance on offering these conclusions the day of the celebration of the anniversary of the Universal Declaration of Human Rights. The CIJ appreciates the hospitality of the Honduran people and wishes to announce that it will continue with the observation of the situation of judicial independence in Honduras and for that purpose it will carry out an international seminar in February 2011 and a second high level mission in March of 2011.
Tegucigalpa, 10 of December of 2010
International Day of Human Rights.