Monday, December 5, 2011


Despite rampant police corruption in Honduras, for which Porfirio Lobo Sosa just approved a law to give the Armed Forces policing powers, now Juan Orlando Hernandez wants to give the police permission to wiretap.

Not only does he want a law to let them wiretap, but he wants it now.

Hernandez says they're wiretapping anyway, so the government might as well give them a legal way of doing it.

In other words, solve the illegality by making it nice and legal.

Some in Congress think this is a bad idea. PINU party member German Leitzelar said:
"It would be a delicate thing to put into the hands of agents in the judicial branch infiltrated by organized crime a weapon so powerful as wiretapping."

Analysts pointed out that such laws have failed in other Central American countries, where they've been used for political blackmail more than they've been used against organized crime.

The Minister of Justice and Human Rights, Ana Pineda, has come out against this law as unconstitutional because it violates the right to privacy.

Even the Commissioner of Human Rights, Ramon Custodio, who sees crime as the most serious human rights issue in Honduras, has come out against the proposed new law.

Still, Hernandez intends to fast-track it.

There already is a law in Honduras that governs wiretapping. Article 223 of the Codigo Procesal Penal spells out the conditions that must be fulfilled to authorize the interception of communications. It reads, in full:
A Judge, at the petition of the Public Prosecutor or other lawyer in his office, may order via a well founded resolution, the recording of the telephone, computer, or other kinds of analogous signals made by the accused or any other person directly or indirectly related to the crime being investigated.

The Judge should weigh in his resolution the gravity of the crime being investigated, the utility and proportionality of the measure.

The intervention in communications treated in this Article might be the identification and recording of the origin, the destination, or both or in the knowing and recording of the content.

In the act which authorizes the intervention, the Judge shall determine who carries out the intervention.

The intervention may not last more than 15 days, but may be extended by the Judge, at the request of the Public Prosecutor or lawyer in his office, for additional 15 day periods, by founded acts, as long as the conditions which initially justified the adoption of the measure remain true.

The recordings, once made, will be given only to the Judge who ordered them, within five days of the termination of the intervention, and every one of the successive extensions. In the case of extensions, the recordings will be turned over to the Judge within sufficient time for the Judge to consider them before reaching a conclusion about extension. Only the Judge may know the contents of the recordings. If they are related to the crime under investigation, the Judge may order transcripts prepared so they can be used in the legal process.

The people charged with making the recordings or the transcriptions must keep secret the contents of the recordings and if they leak the information, will incur legal responsibility.

The recording of a communication by one of the parties without fulfilling the requirements outlined in this Article will lack all probative value.

Juan Orlando Hernandez argues that, because this Article lacks specific procedures for how the recording will be made, his new law is necessary.

In fact, the current law contains what Hernandez's law lacks: judicial protection of the Honduran populace's right to privacy under the constitution. Currently, no wiretapping intercepts can legally occur without a judge's review and approval. Hernandez's law would eliminate judicial review.

Mario Perez, the Congress member Hernandez commissioned to write the new law, says that it will create a Unit for Communications Interception which will both determine when intercepts are necessary and authorize them.

Let me emphasize that this leaves judges out of the loop. The new wiretapping Unit will both determine an intercept is necessary and carry it out, all without the review of a judge, according to Perez.

Mario Perez is getting into a pattern here. He was also part of the committee that wrote the unconstitutional interpretation of Article 274 of the constitution, twisting it to grant full policing powers to the military. Constitutional guarantees seems to mean little to him, other than being obstacles.

Meanwhile, the legislators are ignoring the objections of both the Minister of Justice and Human Rights, Ana Pineda, and the Commissioner of Human Rights, Ramon Custodio. As with the departed Sandra Ponce, events like these make it clear that human rights positions are simply there to satisfy international organizations: the Honduran legislature sees no need to pay attention when these individuals tell them they are acting unconstitutionally.

1 comment:

Adrienne Pine said...

On Abriendo Brecha a couple nights ago Wong Arévalo's tele-encuesta was asking a leading question about wiretapping, and managed to get something over 80% support for the proposal on the bogus poll (it kept changing). I should have taken a screen shot. Frightening.