Blatant Judicial Misconduct

It is distinctly discouraging to read that another Honduran judge has acted in ways that are, to put it mildly, at odds with Honduran law.

But perhaps not surprising considering that the accused in the case is a former Zelaya administration official, who, despite Porfirio Lobo Sosa's guarantees, are apparently not going to be given due process and protected from legal harassment.

The Code of Criminal Procedure in Honduras states in Article 140 that courts have to provide copies of rulings to interested parties:

A Judge arranges for the conservation of the authentic copy (original) of acts, interlocutorial orders, and final sentences and any other act that they consider pertinent....The Secretary orders the preparation of copies, reports, or certifications, when they are requested by a public authority or by people with an accredited legitimate interest in obtaining them...."

A certified copy of a legal decision is necessary to prepare an appeal, because the written decision must contain the legal justification for the order.

Article 143 says:

Rulings and edicts will be issued automatically and without delay....In oral hearings, the resolution will be dictated immediately after the termination of them.

The parties to the criminal case then have 3 days to challenge that order, correct factual mistakes, and so forth (Article 143).

In the case against Enrique Flores Lanza, Judge Claudio Aguilar refused Friday to provide an authentic copy of his ruling specifying house arrest and ordering Flores Lanza within 30 days to pay 27 million lempiras (which itself is legally questionable, since the amount is supposed to be set with consideration of the person's financial abilities) or be sent to the National Penitentiary for holding until trial.

That is a violation of the Honduran Code of Criminal Procedure. It is judicial abuse of authority, as Raúl Suazo, Flores Lanza's lawyer, asserted. Any appeal of Judge Aguilar's order must be filed by Monday and needs to address the legal arguments Judge Aguilar used to support the decision.

Judge Aguilar's odd behavior led Raúl Sauzo to file an appeal with the Appeals Court asking for a stay because the judge declined to provide a true copy of the order:

"We are filing this appeal because the order for the hearing of the accused has not been signed and provided in the legally prescribed form to the legal representatives of Flores Lanza; it hasn't been written by Judge Claudio Aguilar,"

said Suazo.

There's actually more strange behavior by Judge Aguilar.

Apparently he didn't let Suazo or Flores Lanza make any declarations during the arraignment. If Raúl Suzao was not allowed to make declarations during the hearing, this also violates the Code of Judicial Procedure, Article 15, the right to have assistance with defense.

And that would mean the orders against Flores Lanza must be set aside. Article 15 states that violation of this right

will produce absolute nullification of the judicial acts that were produced without the participation of the defense lawyer of the accused.

According to Suazo, Judge Aguilar's actions have indeed set up the conditions to file for nullification of the order due to procedural violations by the court.

And there is one final twist, one other example of the surreal in what passes for a judicial system in Honduras.

Any appeal of Claudio Aguilar's ruling must be heard by the Appeals Court. The chief justice of the Appeals Court, Magistrate Sixto Aguilar, is Claudio Aguilar's father.

When Manuel Zelaya Rosales's defense lawyers appealed a previous ruling of Claudio Aguilar's, Magistrate Sixto Aguilar rightly recused himself.

Expect to see that happen again. And maybe we can expect on the appeals court level, again, Claudio Aguilar's ruling will be overturned. Anything else is simply injustice.

Zelaya Case Update

The judge Claudio Aguilar of the Unified Criminal Court of Francisco Morazan has recused himself and his court from the case brought by the Public Prosecutor against Manuel Zelaya Rosales. The judge ruled that because Zelaya was representative to Parlacen, he was a high government official and that his court did not have jurisdiction as these cases under Honduran law must be tried by the Supreme Court.

This reading of Honduran law agrees with our analysis, that of the UCD, and others who were surprised the case was continuing to be heard in a lower level criminal court.

This effectively discards the motions for nullification placed by the public defenders he appointed for Zelaya.

A spokesperson for the court said that by the middle of next week the Supreme Court would appoint a judge to hear the case.

The public defenders said they would remain on the case.

Full Circle

High government officials are tried by a procedure distinct from common citizens. We talked about this in the context of the legal case brought by the Public Prosecutor, Luis Rubi, against then president Manuel Zelaya. At the time, we showed that this was the proper, legal proceeding for prosecution of a case against a high government official, such as the President.

Well, the Asociación de Jueces y Magistrados de Honduras, a group of judges that supported the coup, wants the existing fraud case against Zelaya back in the Supreme Court. Their argument is that Zelaya is still a high government official because he is the representative to PARLACEN, and therefore the case must be heard in the Supreme Court.

Good thing the courts are on vacation. Judge Claudio Aguilar has a motion in front of him to nullify the cases against Zelaya brought by the alleged defenders he appointed for Zelaya, and a suggestion that he has no jurisdiction over the case brought by a group of his fellow judges and magistrates. Normally he would have to decide such a motion within three days, but because of the holidays, he has three days from when the courts resume a normal schedule, that is, until January 8, to render a decision.

Not that he can't rule sooner. At the very last minute he was put on the holiday rotation which means he can hear and resolve issues during the break. Speculation is that this was done to prevent another judge from being assigned to the case.

If Aguilar decides he does not have jurisdiction over the case because Zelaya is a member of PARLACEN, the prosecution of Zelaya will have come full circle, back to the Supreme Court; the same Supreme Court that the International Commission of Jurists report noted was "permeated with extreme partisan polarization."