Monday, May 9, 2011

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?

1 comment:

RNS said...

It was Arturo Corrales who Porfirio Lobo Sosa appointed to head the goverment taskforce that crafted this solution.

It was his taskforce that came up with the legal strategy of appointing the public defenders to move the case forward (Lobo Sosa's charge) and the legal strategy of nullification.