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.

Technical Foul: Corruption in the allocation of Channel 8

A huge amount of ink is being spilt over Honduran TV Channel 8, once used by the Zelaya administration as a government information channel, then allocated to a private businessman by court action, rented back by the de facto regime, then claimed again by the current government.

Stay tuned for further developments. But meanwhile, a word from your sponsors about TV channels in Honduras and how they end up in private hands.

CONATEL is the Honduran agency that is in charge of administration of telecommunications, radio, and television, the equivalent of the US FCC. Its current operating rules were established in 2002 by accord 141-2002 and include procedures for allocating bandwidth and supervising all broadcasters in Honduras. This accord also establishes dispute resolution procedures, not that they were followed in the current case.

That case is the on-again, off-again pursuit of analog Channel 8 by Elias Asfura.

CONATEL had a policy of only allocating the odd analog channels (3,5,7,9,11) to avoid interference between the channels. The FCC used that allocation approach for years in the US before finally allocating some adjacent channels in crowded urban markets.

Technically, in analog television, adjacent channels don't actually overlap, except channels 7 and 8. The frequencies of these two channels do overlap, so that allocating both in the same market assures there will be some interference. The FCC has not allocated both channel 7 and channel 8 in the same market, even in the crowded New York City market.

Channel 7 had already been allocated in much of the country to TeleSistema Hondureña, S.A.

So in 2005, Teleunsa, S.A., owned by Asfura, was denied permission to operate a television station on channel 8 by CONATEL.

Rather than use the dispute resolution solutions specified in the CONATEL rules, Asfura chose to appeal the decision in the courts.

In May, 2007, a lower court found in favor of Asfura and ordered the government to give him channel 8.

Rasel Tomé, then legal counsel of CONATEL, filed an appeal on November 4, 2007, which the appeals court ruled was technically invalid because it was filed one day too late.

CONATEL had valid technical reasons for not allocating channel 8 to Teleunsa, S.A.. Nonetheless, in 2007, when the government requested a channel, CONATEL went ahead and allocated channel 8 to the government, for a period of 15 years, publishing its decree in La Gaceta. On August 10, 2008, the government began broadcasting on channel 8 as the Red Informativa del Poder Ciudadano.

But El Heraldo reported that on August 5, 2008, Rasel Tomé, as legal counsel of CONATEL, had signed CONATEL resolution AS327/08 allocating channel 8 to Asfura.

Under Honduran transparency law, CONATEL posts a document on its website that notes that every authorization/allocation of spectrum, be it a radio station, TV station, or other use, brings with it financial obligations to pay for the rights to the channel, the registration of that right, and for CONATEL's supervision of the operation of that broadcast unit. Resolution AS327/08 cannot be found on CONATEL's listing of 2008 resolutions, but the transparency law in Honduras is not enforced, so that, in and of itself means nothing.

Tomé's lax handling of the case was apparently scandalous. Enrique Flores Lanza, as Zelaya's principal advisor, stripped Tomé of his legal responsibilities at CONATEL. So, between August 5 and November 24, 2008, CONATEL apparently recognized Asfura as the owner of channel 8. But on November 25, 2008, CONATEL appealed the case to the Supreme Court using a new legal team.

Fast forward to June 2009, when in the week before the coup, Channel 8 broadcast Manuel Zelaya's appeals directly to the people from the presidential palace and the speeches of those who came to join him in an attempt to ward off his removal from office.

After the coup, on August 4, 2009, a lower court again awarded channel 8 to Asfura.

By then, the de facto regime had replaced several members of CONATEL and installed Miguel Rodas as its head. Another of Asfura's companies, Eldi, was assigned channel 12, which he won in another legal suit, this one against SOTEL.

Roberto Micheletti recongized the utility of having a government channel and on assuming power after the coup, signed a contract in which the government rented back from Asfura the rights to channel 8 for the duration of his government, 7 months, renting the channel from Asfura for 1 lempira a month. Micheletti rebranded channel 8 Televisión Nacional de Honduras.

Therein lies (part) of the current problem.

As part of the transparency law, CONATEL must post its fees, which in 2008-2010 included a 57,924 lempira annual fee for the right to transmit on a particular channel, fees for spectrum use, annual fees for supervision, etc? Did Teleunsa pay these fees?

When Micheletti rented back from Asfura the broadcast rights on channel 8, he violated CONATELs operating rules, which prohibit any transfer of broadcast rights without review by CONATEL and a corresponding published resolution.

In short, Micheletti acted irregularly in signing an agreement with Asfura. But equally, the courts which repeatedly have ignored the dispute resolution process applicants are supposed to file in order to affirm Asfura as owner of Channel 8 seem, at the very least, to be acting outside their authority.

As CONATEL argues, the airwaves belong to the government. But it would be hard to tell that by the actions either of Micheletti or the courts.