Legal Opinions

Legal opinions.

How do you assess them? Is it really good news that Honduran courts have nullified the final charges against Manuel Zelaya? If so, why is he not flying right back to the country now?

Certainly, the US State Department is overjoyed, and through the Voice of America, is promoting the idea-- yet again-- that the coup is now completely behind Honduras. On with business!

Honduran lawyer Carlos Augusto Hernández Alvarado is not convinced.

The law professor at UNAH, previously a Professor of Constitutional Law at the Universidad de San Pedro Sula, provided an illuminating commentary about the nullification of charges against José Manuel Zelaya Rosales, which he describes as a "blackmail ploy".

His argument is that the opinion rendered is "a trap", because the nullification was based on errors in process, rather than a repudiation of the charges themselves.

This is certainly the case. As he writes,

The sentence itself centers on sustaining that due process rights of the ex-President, contained in article 90 of the Constitution of the Republic and others such as the right of defense recorded in article 82 and including the presumption of innocence of article 89, were violated, by having been expatriated, expressly prohibited by article 102 of the Constitution.

Hernández Alvarado notes that one justice, Marcos Vinicio Zuniga Medrano, presented a separate legal analysis, arriving at the same conclusion, and using the same bases for nullification. What distinguished this opinion was a "deeper" discussion of the remaining crimes Zelaya was accused of, falsification of public documents and fraud in public administration.

Hernández Alvarado suggests that Honduran citizens need to ask a series of questions about this decision. We think these are pretty good questions for others interested in Honduras to consider as well.

1.- Who petitioned for the nullification of the charges?

Hernández Alvarado's answer: public defenders José Anaim Orellana and Edgard Crosby Lanza. As we have noted before, this appointed violates the right of a defendant to chose their own representation.

2.- On whom does the public defender who solicited the nullification depend?

Hernández Alvarado, noting that the answer is that the public defender is part of the judicial branch, characterizes this as a "grave moral and ethical contradiction", since the judicial branch "is what sustained the illegal charges against the Ex President and now, as if by magic arts, names defenders on the petition of the Procuraduría General de la Republica, converting the Judge into a party to the case".

3.- How [on what grounds] did the public defenders solicit the nullification of the charges?

Quoting Hernández Alvarado:

We have here the first trap of all the spectacle that we have lived through, the public defenders that are at the same time Judge and party for the institution on which they depend, solicited the nullification solely of the process, and not of the substance of the matter placed before them. In other words, they did not attack nullification of the illicit evidence that supported [the charges] and was obtained in an illegal manner.

4.- Why did they not do this before, if they were aware of what had occurred?

5.- Why did the public defenders named and the decree of nullification of the case not enter into an in-depth analysis of the evidence, so that the charges would be completely annulled?

6.- Why did the defense and the nullification of the charges decreed by the Court not ask if the evidence they succeeded in getting was obtained by infringing on due process?

Hernández Alvarado finds the last question explicable only "because they move to the political pulse of whoever controls the institutional apparatus of state".

He notes that "if they had analyzed the illegality of the evidence that would have carried the nullification to the level of the charges themselves, not leaving the door open to reformulate the charges".

This is the most interesting point in his statement: Hernández Alvarado believes that the decision was made in such a way as to deliberately retain the potential to place the same charges again. This is what he characterizes alternately as "the trap" or "the blackmail ploy".

He points to articles 94 and 200 of the Código Procesal Penal as calling for assessment of the legal or illegal nature of evidence provided:

Articulo 94: Illegality of evidence. When the Fiscales have in their power evidence and they know that it was obtained by illicit methods, especially torture, deals, or cruel, inhuman, or degrading punishments or other abuses of human rights, they should abstain from using them; they should proceed against whoever had employed these methods to obtain them if they consider that they have incurred penal responsibility, and adopt all the measures necessary to assure that those responsible appear before justice.

Artículo 200: Prohibited or illicit evidence. They shall lack evidentiary efficacy those actions or deeds that violate the procedural guarantees established in the Constitution of the Republic and in the international treaties related to human rights of which Honduras forms part; as well as however many might have been a necessary consequence of such acts or events and that would not have been possible to obtain without the information derived from them, without prejudice to the responsibility that whoever obtained the illicit information would have incurred.

Hernández Alvarado goes into more depth on the way that the legal opinion fails to confront the violation of aspects of the legal code governing admitting illegally obtained evidence, and the need to pursue those who committed the illegality.

He also notes that article 93 of the same legal code calls for the prosecutor to exercise objectivity. This is defined in ways clearly not descriptive of the actions of the authorities who have been determined to press charges in this case, such as Luis Alberto Rubí:

“Objectivity. In the exercise of his functions the Ministerio Público should act with absolute objectivity and protect the correct application of the criminal laws. He should investigate not only the circumstances that will permit proving the accusation, but also those that would be the cause of exemption or of attenuation of responsibility of the accused; at the same time, he should formulate his summonses in conformity with this criterion, even in favor of the accused."

7.- What is the result, when since the beginning of the process of investigation, the Tribunal A QUO and A QUEO, did not guarantee due process, nor did it execute an Effective Judicial Guardianship for the accused Manuel Zelaya Rosales?

Again, quoting Hernández Alvarado:

Not only did it entail a procedural nullification instead of one on the basis of the way that the evidence was obtained and the violation of international treaties subscribed to by our country and the basic principles contained in articles 16 and 18 of the Constitution, that should have primacy in their application.

Let's point out the norms that were infringed:

• 1, 2, 7, 8, 9, 10,11 of the Universal Declaration of Human Rights of December of 1948;

• 7.3, 8.1, 9, 24, 25 of the Convention of the Americas on Human Rights, signed the 22 of November of 1969, approved the 26 of August of 1977 (Gaceta No: 22,287-289);

• articles 9, 14, 26 of the International Convention on Civil and Political Rights, signed the 16 of December of 1966 (Gaceta No. 28,293).

Now the question to evaluate would be:

Was the evidence in the cases of Ex President Manuel Zelaya Rosales illegally obtained?

Article 209 of the Código Procesal Penal gives us the answer in its second paragraph:

"The register of churches, public buildings, military installations or in general properties of the state can be carried out only by making known to the person in whose charge they are found, the said person should attend the proceeding or name another to represent him, if not, to permit the register would constitute the crime of disobedience."

Hernández Alvarado points out that the "diaspora" of Zelaya government officials after the coup means they were not there when searches were carried out, making any supposed evidence "automatically illegal". He goes on to say

The summons in consequence is not objective, the evidence is nullified, contaminated, and as a final result the case is nullified, not just on the process but also on the basis.

The specific vote of Abogado Magistrado Marco Vinicio Zuniga on the decision to nullify the charges against Mel Zelaya, the one that comes closest to this assessment, logically was not included in the decision because it would procure as a consequence admitting the illegality of the authorities that supplanted those that were constitutionally named and would leave the same Fiscales automatically subject to [charges of] irresponsibility such as those established by article 200 of the Código Procesal Penal.

As he notes, the judges and prosecutors in the present case were themselves involved in the break in constitutional order, and letting them make this decision gave them the opportunity to seek a way to shift the blame away from themselves: to seek a procedural ground that is innocuous instead of confronting the violations at the core of these charges, which would require them to be charged with violations of the law and of international treaties.

His concern is that taking this procedural route to satisfy the form of the demand (in time for the OAS to re-admit Honduras) leaves the way open for charges to be brought again by the Fiscal, whose violations of constitutional rights have not been reprimanded, should Zelaya decide to return to Honduras:

But in this country in regard to justice "cork floats, lead sinks"; we can see a motion without feet or head, end up returning the same original state of the charges against the Ex President...

Was this legal opinion a blackmail ploy?

Hernández Alvarado's answer:

The answer is known to those who control the state, and who in the immediate past carried out a Coup d'Etat.

If that answer is yes, then we have to ask: who is being blackmailed?

Lies and ODCA

The Organización Demócrata Cristiana de América (ODCA) met this weekend in Panama to discuss their philosophical document "Projection of Christian Democratic Thought and Central Political Humanism". ODCA is the parent organization of 36 political parties in 25 countries in Latin America. In Honduras, both the Nationalist and Christian Democrat parties are affiliated with it. We wrote about its core philosophy here.

Interesting press coverage of the event. In the world media, such as EFE and AFP, the coverage was all about how the meeting was to develop a unified approach to stopping populist governments, specifically the governments of Venezuela, Bolivia, and Ecuador.

The international press coverage is primarily of the statements of Milton Hernandez of the Popular Party of Panama.

"We have to rescue democratic values."

Also quoted was Jorge Suarez, a representative to the conference from Bolivia, who told the press:

"The populist projects have proposed much and nothing has come of them....They have been spending too much and now we are seeing a way to get out of them."

In Honduras, El Heraldo ran with the statements of its president, and Mexican Senator for the State of Puebla, Jorge Ocejo, who invented a reality full of discredited ideas and misinformation. In El Heraldo, the whole story was Ocejo's announcement that there was no coup in 2009 in Honduras.

In the fantasy world of Ocejo, there was no coup because the Congress had a discussion and decided they could not go along with Zelaya:

"There was no coup, no one came and entered and took the positions of government,"

said Ocejo. I'm not quite sure how that matches with the reality of the military kidnapping and forcibly exiling Zelaya, but Ocejo continued:

"he was trying to change the rules of the game that are already established in a democratic country to seek re-election as president."

We thoroughly debunked that claim at the time of the coup. Saying it now does not make it so. The "Cuarta Urna" question was about asking voters if they had any interest in voting on whether or not to have a constitutional convention. The Cuarta Urna was not about re-election. Yet Ocejo repeatedly raises this lie as his justification for why there was no coup.

What El Heraldo chose to make the focus of the story, of course, either merited only a single sentence in the major international press, such as the AFP, or went unmentioned.

Ocejo is entitled to opinions, and we've reported them faithfully here, but we've also thoroughly debunked them; they are lies.

It's Over (With A Caveat)

The Public Prosecutor, Luis Rubí publicly announced today that he will not file an appeal to the full Supreme Court of the appeals panel's nullification of the charges filed against Manuel Zelaya Rosales.

"From today we have given the instructions to the lawyers that have the case to not file an appeal....The Public Prosecutor will not make use of an appeal; we will accept the verdict of the court of appeals and continue with what they are ordering us to do to make good on what the court of appeals decided (it is not based in law) and we will continue with the procedures established by law."

Rubí made it clear that he is not enjoined from refiling the same charges against Zelaya in the future. And that's the caveat; Luis Rubí will almost certainly refile charges in the future. And this is what Zelaya Rosales was referring to yesterday when he complained about the "continuing coercion and threats to his liberty." As he said, until there is a final resolution to the political persecution there is no way for him to return to Honduras.

This skirmish is over, but Luis Rubí is planning a full campaign of political persecution of Manual Zelaya Rosales. Nonetheless the OAS will accept this as a compromise solution and pretend that the state of Honduras has ended its political persecution of Manuel Zelaya Rosales.

Like a game of whack-a-mole, these politically motivated charges have been extinguished, but look for them to pop up again in the near future.

Motion To Reconsider Rejected

The appeals panel of the Honduran Supreme Court today rejected the Public Prosecutor's motion to reconsider its verdict in the charges against Manuel Zelaya Rosales.
"This was not the resolution we were looking for. We will exhaust all our legal possibilities because we've well documented the crimes of fraud and falsification of documents by Zelaya.....by means of an appeal we will indicate our rejection of the resolution of the appeals panel of the Supreme Court,"
said Albina Zepeda, the appeals prosecutor.

Starting tomorrow, the Public Prosecutor has 60 days to file an appeal, which will then be heard by the entire Supreme Court.

Reset your countdown clocks again because its not over. 61 days from today and counting.

Motion To Reconsider

The Public Prosecutor's office filed a motion to reconsider with the appeals panel of the Supreme Court yesterday "because of errors in the decision". The motion to reconsider is separate from an appeal, which can be filed up to 60 days after the court's decision. The Public Prosecutor, Luis Rubí said this motion gives them time to study the decision and determine if it conforms to the law.

"We have used the motion to make a more in-depth analysis with the goal of making a study. We will analyze if this decision is based on the law,"

said Rubí. He said he had no preconceptions about the case and that it would be reviewed by legal experts. The appeal states

"Honorable court, finally, we do not want to fail to mention that to support the claim that no injunction may be filed against a person out of the country creates a dangerous precedent, because it would mean that any person could leave the country to later rely on the invalidation of actions taken against them, thereby creating a serious problem with impunity. We request that you admit this motion to reconsider and revoke your previous decision of 2 May 2011...."

The appeals panel of the Supreme Court must issue a decision today on the motion to reconsider.

Its Not Over Till Its Over

Yesterday the appeals panel of the Honduran Supreme Court voted 2-1 to nullify the remaining charges against José Manuel Zelaya Rosales for procedural irregularities. The panel of three magistrates, Rosa de Lourdes Paz Haslam, Marco Vinicio Zúniga Medrano, Gustavo Enrique Bustillo Palma made their verdict public shortly after noon yesterday in Tegucigalpa.

La Tribuna reported that the vote was 2 for nullification of the charges with one abstention. El Heraldo reported that Rosa Lourdes Paz Haslam and Gustavo Enrique Bustillo Palma voted to nullify the charges and that Justice Marco Vinicio Zúniga Medrano voted against the appeal.

The court based its decision on articles 16, 61, 82, 90, 102, 303 and 304 of the Constitution, article 10 of the Universal Declaration of Human Rights, article 8 of the American Convention on Human Rights, and articles 4, 101, 165 y 166 (numbers 3, 5, 6 y 7, 139), 167 (number 1), of the Penal Code and articles 1 and 137 of the Law of the Organization and Attributes of the Court.

The decision

"reformed the order dated 25 March 2011 [of judge Chinchilla] in relation to nullification, and because of the particular and unique status of the involuntary absence of Mr. Zelaya Rosales, declares the partial nullification of the proceedings exclusive to José Manuel Zelaya Rosales accused, from and including the present admission requirements and tax issues 0801-2009-31126 0801-2009-31042 dated July 30, 2009 and February 24, 2010, respectively, promoted against Mr. José Manuel Zelaya Rosales, on charges of falsification of public documents to the detriment of the public trust, and fraud against the government and all acts that have been made to posterity, with the exception of the measures mitigating the appointment of a public defense of the accused, the decision to bring this case to the special procedure for processing a high government official, the motion to bring nullify these actions, the processing of the appeal and the proceedings brought against the co-defendants in related charges."

All of that to affirm the hearing procedures and overturn the decision of appeals judge Chinchilla and grant the defense motion to nullify the two remaining charges against Zelaya Rosales. The court made it clear that the nullification only applied to the charges against Zelaya Rosales, not his co-defendant, Enrique Flores Lanza.

The Public Prosecutor, Luis Rubí, has 60 days to appeal the decision of the three judge panel. He can appeal because the decision was not unanimous. If he appeals, the case is taken to the entire 15 justices of the Supreme Court, who will then analyze and vote on the case.

So all of this will probably be sufficient to get Honduras re-admitted to the OAS, but as yet is insufficient for Manuel Zelaya Rosales to return to Honduras. Its a legal ruse to give Lobo Sosa daylight to negotiate Honduras's return to the OAS while still keeping the charges open. Already Miguel Insulza, Secretary General of the OAS, says this is sufficient to negotiate Honduras's return.

Until the appeals period expires the case is not over.

We fully expect the Public Prosecutor's office will appeal this court's decision. Henry Salgado, the Anti-Corruption Prosecutor as much as said so this morning. The question is, will Luis Rubí stick it to Lobo Sosa and file the appeal before the OAS meetings in June, or will he wait until after the meeting to file his appeal?

Reset your countdown clocks for 60 days.

UPDATE: 11:11 AM PDT - La Tribuna is reporting that the Public Prosecutor's office will file an appeal in the next few hours. Luis Rubí, despite his lack of prosecutorial success in these politically motivated corruption cases, is sticking it to Lobo Sosa with respect to readmission to the OAS.

UPDATE 11:00 PM PDT - The appeal is filed.

Annulled?

El Heraldo is reporting a rumor that the Honduran Supreme Court has decided to anull the charges against Manuel Zelaya Rosales.