Honduras Wants A New Public Prosecutor In the Worst Way Possible

Here's how:

Back on June 25, the Public Prosecutor, Luis Rubi, and his deputy Public Prosecutor, Roy Urtecho, resigned from office, to avoid impeachment.  A committee appointed by Congress to investigate the Public Prosecutor's lack of progress on cases had found that prosecutors were complicit with organized crime, taking payoffs, and that a significant part of their budget was spent without accounting records.

The committee reorganized the Prosecutor's office and dismissed a handful of prosecutors. That created a situation where Honduras needed a new Public Prosecutor and deputy Public Prosecutor.

There was a procedure for this, a law spelling out the composition of a nominating committee that involved members of civil society representing churches, universities, and lawyers group.

A few odd things happened on the way to composing the committee. First, Congress hastily revised the composition of the committee, to include a new group, the Alianza por la Paz y Justicia. Then, Roy Urtecho, who had been forced to resign as deputy Public Prosecutor, was appointed by the Lawyer's Association (CAH) as their representative.

Urtecho's appointment gave some committee members pause, but they continued. Rather than debate names and select candidates proposed by members of the committee, they opened the process for self-nomination.  They established a procedure to review nominees that included a lie detector test and psychological evaluation, with failure of either test explicitly supposed to disqualify a candidate. In the end, fifty-one people nominated themselves for the two positions.

Things started to fall apart as soon as the nominations closed. Try to follow the timeline here:

The nominating committee met and disqualified candidates who were not licensed lawyers in Honduras, as well as those who lacked some legal qualification (such as age) to be considered, or whose application was incomplete.

With the announcement that candidates would have to submit to lie detector and psychological tests (the same being used to evaluate police), reportedly many candidates withdrew their names.

Oscar Fernando Chinchilla (Supreme Court Justice) was named as among those failing the psychological test, along with Doris Imelda Madrid, and Lino Tomás Mendoza.  Others signaled by the press as having failed one or the other of the tests include Manuuel Enrique Alvarado, Marco Antonio Zelaya, and Guillermo Escobar Montalván

Only 13 candidates passed both tests and the review of their application:

     1-Ivis Discua Barillas.
     2-María Antonia Navarro.
     3-Gina González.
     4-José Arturo Duarte.
     5-AnÍbal Izaguirre.
     6-Eugenio Edgardo Rivera.
     7-Rolando Argueta.
     8-Jair López.
     9-Mario Salinas.
    10-Rigoberto Cuéllar.
    11-Marcelino Vargas.
    12-Lisandro Sánchez.
    13-German Enamorado.


So the final candidates must be on this list, right?

Not so fast.

Julieta Castellanos, rector of the public university, complains that when Luis Evalin, representative of the private universities, came back after a week out of the country he sought to change the rules agreed to by the other six members of the committee. Evalin missed the meetings where candidates' education was being evaluated.  He also missed all the interviews

When the nominating committee reconvened last Tuesday, after the first round of tests had been administered, to see who had passed and who had failed, Evalin demanded a change in the way candidates were evaluated. He put forward a motion that called for  polygraph evaluations of the twenty candidates who had been eliminated either during review of their resumes, or by failing the psychological tests.

Roy Urtecho seconded the motion, and the nominating committee, perhaps overwhelmed by the small number of individuals remaining in the pool, agreed. Evalin's side prevailed, on a 4-3 vote.

So by Wednesday those who had failed one of the confidence tests were allowed to take the other test, rather than be eliminated. That put Oscar Fernando Chinchilla back into the running, despite having failed the psychological test.

Evalin later told the press, "I represent the 19 private universities, respect them."  Though Evalin was not present and therefore could not know what went on in his absence, he told the press that university faculty with international reputations had been rejected just for faults in their paperwork, and that there had been no interviews.  Evelin argued for using experience rather than the results of tests to evaluate the candidates.

Also on Wednesday, Mauricio Villeda, Liberal Party candidate for president, called on Liberal Party Congressmen to abstain from voting for any candidate coming out of the nominating committee, arguing that the election would be illegal, and should be held after the new Congress is seated next January. If the Liberal Party had followed him, it would have denied the National Party sufficient votes to approve any candidate.  PINU, another minority party in Congress, agreed with his position, as did Libre, which has no congress members currently.

Thursday the Alianza por la Paz y Justicia pulled out of the nominating committee.  Its representative, Carlos Hernandez, said that

"We are not going to participate in a process where they break the rules at the last minute, I don't know what their motivations are, but the rules were established and unfortunately they changed, and if this isn't undone, we won't participate."

Everything was transparent and agreed to up until Monday, according to Hernandez.

The same day, Ramon Custodio, Human Rights Ombudsman,  also pulled out, saying that he would not sully his good name.  Julieta Castellanos also withdrew, echoing Hernandez's call for transparency.  She continued:

"Everything that happened from Tuesday onward, that's the responsibility of four members...We cannot in conditions where there isn't a transparent explanation, of what has happened, continue the participation of the University"

So Thursday, the nominating committee met with three of its members missing (Hernandez, Custodio, and Castellanos).  Present were Jorge Rivera Aviles, Roy Urtecho, Luis Evalin, and Edith Maria Lopez Rivera. They agreed to consider 27 candidates and whittle the list down to 5 names.

Candidates began withdrawing their names from consideration.  Three candidates who had passed both tests withdrew early in the day: Jair Lopez, Jose Arturo Duarte, and Rigoberto Cuellar. Rivera Aviles later told the press that the nominating committee chose to ignore the withdrawal of candidates on Thursday.

By Friday morning, Rivera Aviles, as committee chairman, made it known that the nominating committee had settled on a list of five candidates, but was not releasing the names until later in the day in case any of the committee members who had withdrawn wished to vote their positions, possibly changing the outcome.

Nonetheless the list was leaked to the press from Rivera Aviles' Supreme Court staff:

     Oscar Fernando Chinchilla
     Maria Antonia Navarro
     Rigoberto Cuellar Cruz
     Ivan Discua Barillas
     Rafael Argueta


At that point it became obvious that Chinchilla, Rivera Avile's hand-picked candidate to control the Constitutional branch of the Supreme Court, was going to get the nomination.

The members of the committee who had withdrawn refused to legitimate the procedures used by the rest of the nominating committee. The five candidates selected by the remaining committee members were proposed to Congress on Friday night.  Interviews began the next day.

Saturday, while being presented to Congress for his inverview, Ivan Discua Barillas withdrew his candidacy, saying there was already a "fix" in for Chinchilla.  Addressing Congress, he said to their faces

"I don't have godfathers and I don't want them because I value my abilities; I want to tell you legislators that are here and don't bear the blame.  The decision over who will be Public Prosecutor was taken last night (Friday) at 9 pm by the [National] party leadership; and I tell you with conviction that to that class, Honduras isn't important."

Porfirio Lobo Sosa called Discua's reaction "logical" but dismissed it as political.

To the surprise of no one, Honduras awoke Sunday morning to the announcement that Oscar Fernando Chinchilla had been elected the new Public Prosecutor for a term of five years.

Rigoberto Cuellar was elected as deputy Public Prosecutor, despite having withdrawn his name from consideration on Thursday.

And we are sure that everyone who watched this sausage being made is reassured that the Public Prosecutor's office won't be corrupt this time around.

When You Stack the Court...

You win.

The special Supreme Court organized from mostly non Supreme Court justices by Chief Justice Jorge Rivera Aviles, unsurprisingly voted 13-2 not to admit the appeal of the Supreme Court justices removed by Congress on December 12, 2012.

We say unsurprisingly because Rivera Aviles hand-picked all but two of the justices on the panel from the lower courts.

The justices who voted to admit the appeal were Raúl Antonio Henríquez, from the Penal branch of the Supreme Court, and Adela Kaffaty, of the Appeals court.

The thirteen who voted against admitting the appeal consisted of Rivera Aviles and his hand picked appeals court judges. Only one sitting Supreme Court justice supported him. But that was all he needed.

Adela Kaffaty (already then an appeals court judge) in 2011 argued in the Interamerican Commission on Human Rights (IACHR) for the de facto government of Honduras. She urged the IACHR to not admit a human rights appeal from four magistrates dismissed by Rivera Aviles in 2009, under the de facto regime, for speaking out against the coup.  She told the IACHR that to admit the appeal would "convert the IACHR into a political organization and would contribute to discrediting Honduras".

There is a case to be made that discrediting Honduras internationally was promoted by actions like the removal of those magistrates, the involvement of the Rivera Aviles court in post-facto rationalization of the coup, and the series of confrontations that led to the spectacle of a not-so-Supreme Court refusing to reinstate four justices removed because Congress didn't like their decision.

It isn't just our opinion that this is bad for government in Honduras.

Before the latest decision continuing the dismantling of the judicial branch had been announced, Salvador Nasralla, the Anti-Corruption party candidate for president, said of the judges making the decision:

They think it's a soccer match, but internationally, if today the justices are not returned, Honduras will be considered a dictatorship and that is serious because it removes the rule of law we've boasted about.

Rivera Aviles' court ignored him and decided against the appeal anyway.

Justice Rosalinda Cruz, who was dismissed in December, said of the decision:

It's totally arbitrary, an illegal, unconstitutional decision lacking any legal foundation.

She indicated that the next step would be to seek a reconsideration, but that too is likely to fail.  She noted that they have an expedited path to the international courts once they've exhausted this appeal.

One avenue would be to take a human rights appeal to the IACHR. Maybe Adela Kaffaty would like to testify, this time on the right side?

Supreme Incivility

Major incivility broke out between Justices in the Supreme Court and the Chief Justice on Wednesday.

Last Friday in a unilateral move, Chief Justice Jorge Rivera Aviles wrote a memo transferring two of the sitting justices from one branch of the court to another.  Rivera Aviles ordered that Justice Raúl Antonio Henríquez Interiano be transferred from the Penal branch to the Civil branch of the court.  He further ordered that Justice Marco Vinicio Zúniga Medrano be transferred from the Civil branch to the Penal branch.

On Tuesday, the special Constitutional branch ruled the appeal of the firings by Congress of the Supreme Court Justices inadmissible by a 4-1 vote, with Justice Henríquez Interiano being the lone vote to admit the appeal.  Because of this, the appeal will now go to a special full Supreme Court of judges hand picked by Jorge Rivera Aviles from the appeals court benches.  A decision from this 15 judge special full Supreme Court (which only has three sitting Supreme Court justices on it) will be by majority vote.  I have no doubt they will vote to not admit the appeal.

Rivera Aviles' memo arrived on the desks of the transferred justices today, and they chose to publicly respond.  Justice Henriquez Interiano told the press on the Frente a Frente program this morning:

"It has never happened in the history of the Judicial Branch that a president, in an authoritarian way, rotates a justice from one branch to another."

This, he points out, is against the rules adopted to govern the Supreme Court, which states that right after being appointed, the Chief Justice assigns the justices to the different branches and they serve there until their term ends.  Henriquez Interiano told the press that the coordinators of each of the branches condemned the rotation.

We are not in agreement with this provision, we don't accept, and will never accept this because it violates the independence and right to employment that the judges we must have from the moment we are inducted into every branch of the court. 

He closed by saying he awaited Rivera Aviles' response, because unless he reverses himself, Henriquez Interiano will notify the Public Prosecutor of a possible crime committed by Rivera Aviles.

That was the nice judge.  Justice Marco Vinicio Zúniga Medrano exploded:

Well, your constant trips and the [political] heights in which you travel has not permitted you to notice that you haven't been capable, up to now, to define the procedures and precise and achievable goals, and therefore we don't clearly see our course.  What is clear is that with your "management style", the ship of the Judicial branch will never reach a secure port, because its captain is driving it at great speed, to an inevitable shipwreck in turbulent waters. I hope when this happens, that its not the captain who abandons ship first."

Zuniga Medrano pointed out that what Rivera Aviles did was illegal, violated the rules adopted by the Supreme Court in 2002, and anyway:

"To interpret it in any other way is only possible in the head of an ignoramus, a fool, or someone with a nervous tick caused by the ingestion of alcoholic spirits"

There's a lot more since Zuniga Medrano wrote a five page memo to Rivera Aviles.  He called for Rivera Aviles to respect the justices, as he wrote to them in May, 2009:

which you surely have forgotten, as the rumors in the hallways of the court indicate, because of the pathological vast intake of alcohol.

He went on

Cease your perverse intentions, recognize me not only as a magistrate of the Civil branch but also as its coordinator or to the contrary I will proceed to file the appropriate complaints with the Office of the Public Prosecutor of the Republic, for abuse of authority and in the National Congress so that they investigate your administrative conduct.
 

But I guess that's what you get when you conspire against your fellow justices in the Supreme Court.  The spokesperson for the Supreme Court indicated that Rivera Aviles would reply today, so stay tuned.

Definitive Verdict: Final Answer?

Remember when Romeo Vásquez Velásquez and the other generals were "tried" for kidnapping President Zelaya and forcibly sending him to Costa Rica back in 2009? The Public Prosecutor eventually lodged a case against them, and that case was heard by the Chief Justice, Jorge Rivera Áviles, who found them not guilty.

Well, that case is back.

The case was brought after Porfirio Lobo Sosa assumed the presidency in January 2010, and heard last January. Rivera Aviles handed down a definitive verdict of "not guilty".

The Public Prosecutor, Luis Rubí appealed, lost, and appealed again and got a split decision. The Supreme Court appeals panel that heard the case, the 5 judges of the Constitutional branch of the court, could not agree on a verdict. Four voted to uphold the verdict, and 1 voted to reject it. They had to be unanimous in their decision to reach a verdict.

So the case moves to the entire Supreme Court for them to try and reach a verdict. Today the entire Supreme Court will meet and vote on this case. Tomas Arita Valle, the judge who issued the arrest order for Zelaya, will preside over this hearing. The court can issue a definitive and final verdict, or remand the case to a panel to study the options and make recommendations.

The Supreme Court split, 10 to 5, on the issue of punishing the judges later fired for supporting Zelaya. I can't imagine the decision today will be all that different.

Not-so-Special Justice

Last Friday, the Chief Justice of the Supreme Court, Jorge Rivera Áviles, rescinded his order of August 8 prohibiting the naming of police officers as court officers in relation to cases that involve raids and the dislodging of campesinos from land.

His reversal followed his participation Tuesday in a meeting between representatives of the Supreme Court, Military Command, the Police, and the Ministers of Defense and Security.

Previously the appointment of police officers to oversee the proper legal actions in police operations of these types was seen as a bad thing. Now its not seen by the Chief Justice as a problem.

At the meeting on Tuesday it was decided that the judiciary and security forces would no longer rely on local judges for court orders in their operations in the Bajo Aguan. Instead they will use special court officers, jueces ejecutores ("distrainor" in English, defined as the legal officer who seizes goods for debts, apparently used with a slightly wider meaning in this instance).

With no local connection, these jueces ejecutores will be flown in to the area, then escorted back to where they came from.

Why do they need special justices?

The military believes there is a problem getting court orders to dislodge campesinos who have invaded the plantations of the large land owners in the Bajo Aguan. They claim that local judges are reluctant to issue the orders because they fear for their lives.

The judges issuing the orders must physically be present during the operations by the military. According to at least one story in La Tribuna, they have been not showing up, causing operations to be canceled. By bringing in legal officers from other areas, this presumably will be avoided.

But these will not be just any legal officers: they will be police officers, overseeing the actions of other police officers.

This is a bad idea.

Its a bad idea because it makes the Police both Judge and Executioner. The legal system is designed as a series of checks and balances; this removes one of the checks.

Ana Pineda, the Minister of Human Rights, was not included in the Tuesday meeting that led Rivera Aviles to reverse his original decision. Pineda was supposedly consulted by phone about the appointments and gave her approval. We can only assume she didn't know that Rivera Áviles was going to rescind his order against having police officers appointed to these positions.